6-7 EDWARD VII., A. 1907 not the Laws of England for the Decision of the same, and all Causes that shall hereafter be instituted in any of the Courts of Justice to be appointed within & for the said Province by His Majesty, His Heirs & Successors, shall, with respect to such Property & Rights be determined by the Judges of the same agreeably to the said Laws & Customs of Canada & the several Ordinances that shall from time to time be passed in the said Province by the Gov' Lieut-Gov' or Commander in Chief by & with the advice & consent of the Legislative Council of the same to be appointed in manner herein before mentioned & by no other Laws Customs or Usages whatsoever. Provided always that it shall & may be lawful to & for every Person in the said Province, whether Canadian or English, that is Owner of any Goods or Credits in the same, and that has a right to alienate the said Lands, Goods or Credits in his Life time by Deed of Sale, Gift or otherwise to devise or bequeath the same at his or her death by his or her last Will & Testament to such Persons, & in such manner as he or she shall think fit, any Law, Usage or Custom; heretofore; or now prevailing in the Province, to the contrary hereof in any wise notwithstanding. And provided also that nothing in this Act shall extend or be construed to extend to any Lands that have been granted by His Majesty or shall hereafter be granted by His Majesty His Heirs & Successors to be holden in free & common soccage & that it shall & may be lawful to & for any of His Majesty's Subjects at his, her or their respective Ages of 25 years to change the Tenure of Estate held of His Majesty, His Heirs or Successors into free & common soccage by any deed executed in the presence of two Witnesses & presented to the Chief Justice of the Province who shall summon a Jury to assess the sum to be paid to His Majesty in lieu of the Profits of the Seigniory & upon Payment thereof shall direct the Deed to be enrolled & the same being enrolled the Land shall from thenceforth be held as Lands in free & common soccage are held by the Laws of England. And Whereas the Certainty & Lenity of the Criminal Law of England & the Benefits and Advantages resulting from the use of it have been sensibly feit by the Inhabitants from an Experience of more than nine years, during which it has been uniformly administered. Be it therefore enacted by the Authority aforesaid. That the same shall continue to be administered, and shall be observed as Law in the Province of Quebec and its Dependencies as well in the description & quality of the Offence, as in the method of Prosecution & Trial, and the Punishments & Forfeitures thereby inflicted to the exclusion of every other rule of Criminal Law, or mode of Proceeding thereon which did, or might prevail in the said Province before the year of Our Lord 1764. Anything in this Act to the contrary thereof in any respect notwithstanding: Subject nevertheless to such Alterations & Amendments as the Gov Lieut-Gov or Commander in chief of the sa Province, by & with the advice & Consent of the Legislative Council of the said Province hereafter to be appointed, shall from time to time cause to be made therein in manner herein after directed. And Whereas it may be necessary to ordain many Regulations for the future Welfare and good Government of the Province of Quebec, the occasions of which cannot now be foreseen, nor without much Delay & Inconvenience be provided for without intrusting that Authority for a certain time & under proper Restrictions to Persons resident there And whereas it is at present inexpedient to call an Assembly; Be it therefore enacted by the Authority aforesaid that it shall & may be lawful for His Majesty, His Heirs and Successors by Warrant under His or Their Signet, or Sign Manual and with the Advice of the Privy Council to constitute and appoint a Council for the Affairs of the Province of Quebec & its Dependencies to consist of such Persons resident there, not exceeding (23) nor less than (17) as His Majesty, His Heirs and Successors shall be pleased to appoint, and upon the Death, Removal, or Absence of any of the Members of the said Council, in like manner to constitute & appoint such and so many other Person, or Persons as shall be necessary to supply the Vacancy, or Vacancies; which Council so appointed & nominated, or the major part thereof shall have full Power and Authority to make Ordinances for the Peace, Welfare and good Government of the 1 The remainder of this clause is left out in the 4th draught, in accordance with the criticisms of Hillsborough and Carleton, as accepted by Dartmouth. See p. 404 & note 1, p. 390. ESSIONAL PAPER No. 18 id Province, with the Consent of His Majesty's Governor, or in his absence of the ieutenant Governor or Commander in Chief for the time being. Provided always That every Ordinance so to be made shall within Months be ansmitted by the Governor or in his Absence by the Lieutenant Governor or Comander in Chief for the time being, and laid before His Majesty for his Royal pprobation; And if His Majesty shall think fit to disallow thereof, the same shall ease & be void from the time that His Majesty's Order in Council thereupon shall be romulgated at Quebec: And provided also, That no Ordinance touching Religion, or »y which any punishment may be inflicted greater than fine, or imprisonment for three Months shall be of any force or effect until the same shall have received His Majesty's Approbation: And provided also that no Ordinance shall be passed at any Meeting of the Council except between the day of and the day of unless upon some urgent occasion, in which Case, every Member thereof resident at Quebec, or within Miles thereof shall be personally summoned by the Governor, or in his absence by the Lieutenant Governor, or Commander in Chief for the time being to attend the same. And be it further enacted &c That nothing herein contained shall extend or be construed to extend to prevent or hinder His Majesty His Heirs or Successors by His or their Letters Patent under the Great Seal of Great Britain from erecting, constituting & appointing such Courts of Criminal, Civil and Ecclesiastical Jurisdiction within and for the said Province and its Dependencies, and appointing from time to time the Judges & Officers thereof as His Majesty, His Heirs and Successors shall think necessary & proper for the Circumstances of the said Province. Endorsed :-Dra' of Bill. NOTES ON THIRD DRAUGHT OF QUEBEC BILL.1 The first preamble, and enacting clause of the present Bill are entirely new, and are introduced in order to annex to Quebec during The King's Pleasure the Territories therein described, which are now, for the greatest part, without either the protection or comptrol of any Government whatever and for the rest subjected to the incompetent and improper Jurisdiction of Newfoundland. This possibly might have in general been done by the sole authority of the Crown, but it is conceived that it would have been liable to doubts that cannot exist in the present mode which is conceived to be more effectual, & of more proper notoriety. The whole preamble of the former Bill, reciting and condemning the Proclamation and other consequential Acts of Government is omitted, and in lieu of it a very short preamble introduced stating the general inadequacy of those Regulations to the present State and Circumstances of the Colony. The first enacting Clause of the present Bill does not materially differ from the first enacting Clause of the other, the only difference is that it does not revoke any other Commission to the Governor but the one now existing. The Second and Third Clauses of the present Bill are proposed by Mr Hey' in the place of the Second Clause in the old Bill that restores to the Canadians generally their Property, Laws, Customs and Usages, including as it is conceived under the word Laws not only all Civil Rights, but also all Ecclesiastical Laws and Authorities incident 1 Canadian Archives, Dartmouth Papers, M 385, p. 337. These notes are evidently by Sol. Gen. Wedderburn, as may be gathered from his criticisms on the second draught of the bill addressed to Lord Dartmouth; see note p. 377. There was undoubtedly an intermediate draught of at least part of the bill, between the second and third draughts as here given, and it is to the intermediate form of certain clauses that some of these notes apply. It is evident, for instance, that the clause with reference to the Roman Catholic religion has been altered in the third draught from the form indicated in these notes; and we find that the alterations were due to the criticisms of Lord Mansfield upon the form in which the clause was left by Wedderburn and Hey. See below, note 1, p. 387. 2 See note 3, p. 379. 18-3-25 6-7 EDWARD VII., A. 1907 thereto, which general Provision is restrained by the present Act to the free Exercise of the Romish Religion, as far as is consistent with the King's Supremacy, exempting Protestants from Payment of Tythes' and making the Laws and Customs of Canada in Civil Cases the Rule for Judgement in the Courts, under certain Limitations & Exceptions in respect to disposition of Property by will, and a mode of changing the Tenure of Lands held by Seigniory into Common Soccage. The fourth Clause of the present Bill introduces the whole Criminal Laws of England which by the Corresponding Clause of the old Bill was only in part introduced & under Limitations. The rest of the Clauses in both Bills respecting the Legislative Council are very much the same; there is no material difference except by the new Bill their appointment is to be by sign Manual in like manner as Councillors in other Colonies are appointed-by the former Bill they were to be appointed under the Great Seal of Great Britain, which besides deviating from the rule in other Cases is liable to other obvious Objections. Endorsed Notes of Alterations in the Quebec Bill. : THE CLAUSE CONCERNING RELIGION IN THE THIRD DRAUGHT. 3 The Proviso in favour of the Protestant Subjects of Quebec, if it is intended to operate only as a saving to the clause which gives to the Canadians the free exercise of their Religion appears to me to be unnecessary—from a Church merely tolerated, as the Romish Church is by this Act, There can be little occasion to resort to any special protection, immunity or Privilege in behalf of any body, for existing only by Permission of the state, it can claim nothing, enforce nothing, exercise no controul or Authority over its own members but by consent, & it should seem useless to reserve to others by express Provision of Law, what cannot be taken from them but by their own choice & approbation. In this light therefore the clause seems to be unnecessary. But if it is intended to operate as a saving to the clause immediately preceding which gives the Canadians the Enjoyment of their ancient civil Rights customs and Usages, I apprehend it will be found an Exception as large as the Rule; and leave it still in doubt, whether in a matter of civil Right the Canadian or English Law where they differ together with the form & mode of Proceeding, shall have the Preference. A Case which came before me in Judgement, & which is very likely to happen again will possibly put the objection I mean to state in a clear light before your Lordship. By the custom of Paris which your Lordship, I presume, means to restore, the Mason Carpenter & other Artificers employed in building a House for another, Have, by an implied Contract between them & the owner for whom they build, of which they need only make a minute in a Notary's Office a mortgage upon the house which no incumbrance whatever prior or subsequent can Affect, but they may follow their demand thro an hundred mesne assignments into the hands of the present Possessor, & insist upon its being sold to pay them upon failure of the Person with whom they first contracted to build. should those Canadian Artificers bring an action in their usual form (wholly different from our own) against an Englishman who had purchased such a house for a Valuable consideration, might not He, & would not He be authorized to say, I will not answer in this mode of Process nor be bound by this Law Every Privilege 1 This is the portion to which, as left by Wedderburn and Hey, Lord Mansfield takes objection, as stated in the document which follows this, and which in consequence of his criticisms was altered in accordance with his suggestions, and appears in that altered form in the third draught. 2 Canadian Archives, Dartmouth Papers, M 385, p. 340. It appears very probable, from the refer ence in the second paragraph, as well as from the whole tone and purpose of the proposals, that these criticisms were made by Lord Mansfield, and this is confirmed by his letter to Lord Dartmouth; see note p. 387. 3 This refers to the clause as draughted by Wedderburn and Hey; see above p. 383 and note 1. this page, and which as the result of this criticism was amended as it appears in the first clause of the third draught. ESSIONAL PAPER No. 18 'rotection & advantage of what Nature soever or kind that I am intitled to by the Laws : Constitution of the Realm of England, are expressly reserved to me, amongst which reckon the Tryal by a Jury as an Eminent one. Let these men bring their Ejectment pon their mortgage Title & let the tresspass be enquired into by a Jury according to he good old forms & usages of the Realm of England, & not by Laws & in a inode of Proceeding unknown & not used there & which derogate from the Rights of a british subject. What answer could be given to a demand of this kind which would not militate either with the Law or the Exception & who would say which was intitled to the Preference? And with submission to your Lordship I do not see how it is possible to alter the Provisional clause to any advantage or find any form of words to reconcile it in substance with the other. Whatever is to operate as an Exception to a positive general Law ought I apprehend to be clearly & expressly pointed out. it is your Lordships Intention (I presume) to revive the whole canadian Law in matters of a civil Nature, to make it the general law of the country to govern british as well as canadian Property by iss Rules if your Lordship intends any reservation with respect either to the Laws or the Administration of them, in favour of the british subjects, it must, I apprehend be clearly ascertained where & in what instances it should take Place. a General reservation like that contained in the clause will either operate nothing, or go to the destruction of the whole. for if the Legislature does not draw the Line I know not well how any Judge can do it. The Legislative Council cannot do it. They cannot restrain or define privileges reserved by the Act of Parlt. nor as I should conceive even explain or determine them. With great submission therefore to your Lordships better Judgement I conceive that clause must be wholly struck out or more particularly explained. Will your Lordship permit me to add a word or two upon the subject of Religion as it is affected by this Act of Parliam'. That your Lordship intends only a bare Toleration for the R. C. Religion without any maintenance or support for the Clergy appears obvious from the manner of penning the statute. The Clause which mentions & allows the Exercise of Religion is totally silent with respect to the Clergy or any right belonging to them & the cautious use of the words civil Rights in the clause that restores them to their old Laws & customs, seems to distinguish & exclude Ecclesiastical ones. But will your Lordship (upon reflection) think it sufficient barely to tolerate a large & powerful Body of Men the R. C. Clergy in Canada, in the exercise of their Religion, without any other means of support than what is to arise from the Voluntary contribution of their Parishioners, or does your Lordship apprehend any mischief or great inconvenience would arise from acknowledging their right to a decent & moderate maintenance under the sanction of a british Act of Parliament. To say nothing of the discontent it would occasion will your Lordship think it quite consistent with the terms of the treaty-under which the property of the Clergy as well as Laity seems to have been reserved to the owners- & the Right to a decent support by Tithes seems to be as much the Property of the Clergy, as the seigneurial lands of the seigneurs, or any lay Property whatsoever of a Layman. Power & Authority neither belongs to them by treaty nor is it consistent with a Protest' Govt. to suffer them to be retained-but subsistence seems to be their right, & under this Idea, I have taken the Liberty to make an additional clause, reserving the Tithe of Protestants for a Protestant clergy when his Majesty shall think proper to intitle any to demand it.' * This is evidently the clause which has been incorporated into the third draught of the bill and which makes provision for the collection of tithes by the Roman Catholic clergy, and reserves the right to provide for a protestant clergy as well. On April 28th the following note was sent from Lord Mansfield to Lord Dartmouth :-" My Lord I reed the inclosed Drt last night at 10 o'clock-I have read it over. I would suggest two alterations upon the Plan as it stands-One, which I have just put into the Drt in a piece of Paper relative to the Supremacy I mean it to avoid, what La North & yr LoP seemed very desirous of avoiding the necessity of the Canadian Gentlemen taking the Oath 18-3-251 * * * * * * 6-7 EDWARD VII., A. 1907 For the manner in which the whole of what your Lordship gave me when I had the Honour to be with you on Saturday will then stand I refer your Lordship to the Paper itself First enacting Third & fourth enacting Clauses. 2. Proviso of 5th Enacting Clause. LORD HILLSBOROUGH'S OBJECTIONS TO THE QUEBEC BILL The extention of the boundaries to the North so as to comprehend the Labrador coast his Lordship approves, but has insuperable objections to the extention to the Mississippy and Ohio. His reasons as far as I can recollect them are these. If an extention of the boundaries for the sake of Jurisdiction only over the Inhabitants was intended. There is no occasion for doing it by Act of Parliament as it is in the power of the Crown at present to give such jurisdiction if thought fit. And it is better to do it by the authority of the Crown only, because the jurisdiction so given may be limited & restrained in such manner as to answer all the purposes of Government and to avoid the inconveniencies with which a general extention or annexation will be attended. But from the Terms in which the extention is made and what is said in the subsequent Clauses his Lordship supposes that it is intended to make Parliament declare that it is right and proper to settle The Territories annexed, for these Lands & Inhabitants are put in exactly the same state as those within the present Limits. An inducement is held out to the Roman Catholick subjects of Quebec and to all other Roman Catholics to remove into these annexed Countries by granting them the French Laws & Customs of Canada and the Free exercise of their Religion. If this be the case every reason & argument his Lordship had to offer against the Ohio Grant urges him with Tenfold strength to oppose this proceeding. His Lordship objects to the granting of any Lands in the Province in free & common Soccage & refers to a Report of the Board of Trade for his of Supremacy. The other relates to the Right of Tithes &e depending upon the Man's professing the Popish Religion. Any man who denies professing it will be excused. They should pay to the Priest till the time is ripe for their paying to the Minister of some other Religion. Your Los most obt hu. Servt Mansfield." M 384, p. 268. To this Lord Dartmouth made the following reply "Ld Mansfield "My Lord 1 May 1774 I have laid before his Majesty's Confidential Servants the alteration your Lord” has been so good to suggest in the Quebec Bill, & they were unanimously of opinion to adopt the first relative to the Supre macy. The other they thought unnecessary, because it is his Majesty's Intention to make immediate provision for a Protestant Clergy, from the tithes of the Estates of Protestants so that none can elude the payment by denying the Profession of the Popish Religion. Their Lord thought fit to alter the stile of the clause wh enacts the free exercise of the Romish Religion to make it declaritory this, we conceive, will obviate any doubts that might have been created by it, & prevent any ill consequences, it might be thought likely to have in other parts of his Majesty's Dominions. With these alterations I hope the Bill will have your Lord approbation. I have the Honour to be &ee D." M 385, p 278. The suggestion with reference to the oath of supremacy which Lord Mansfield had enclosed, is preserved in the Dartmouth Papers, endorsed "Clause (A),” M 385, p. 329. This was introduced as it stands into the Quebec Bill while going through Parliament, and provides a special oath for the Roman Catholics, instead of that of the Ist of Queen Elizabeth. See p. 392. 1 1 Canadian Archives, Dartmouth Papers, M. 385, p. 356. As the accompanying letter will show, these objections of Hillsborough and Carleton to parts of the third draught of the Quebec Bill were stated in their present form by Wm. Knox, the Under Secretary of State for the Colonies. "My Lord In consequence of my having sent Lord Hillsborough a Copy of the Quebec Bill by Your Lordships Orders, I had a message from his Lordship this morning and lest I should not be able to find your Lordship before dinner I have put down upon the inclosed paper what I collect to be his sentiments respecting the Bill. have also added what Gen Carleton beggd I would mention from him to your Lordship respecting one Clause. I have ventured to point out such Amendments as would in my opinion render the Bill unexcep. tionable to both, and without injuring any of your Lordships purposes. I must however acquaint your Lordship that Lord Hillsborough said he had not sufficiently considered all other parts of the Bill having had it only yesterday afternoon, but that if he found anything else to wish alter'd, he would communicate his ideas thro' me to your Lordship as he desired to do those I have stated. Your Lordships very faithful and obedient Servant. Will Knox 30th April 1774." M 385, p. 270. |