SESSIONAL PAPER No. 18 Your Lordship knows, Canada is no longer what it was at the conquest; it is (as I have reason to think) much altered since the American Independence took place. Besides the afflux of persons disgusted with American Government, the load of taxes imposed on those who yet remain under it must shew to the Canadians their advantages over them in situation which they were blind to while the American Emissaries during the late rebellion amused them with the florid display of the blessings of American liberty. Those persons who by their mere negatives to matters brought on in Council, stop, or prolong the proceedings, are not armed with argument to support their naked votes, & lean upon the faith, information and suggestions of those few who have more subtility and plausibility than solid Argument. The minutes speak for this assertion, but My Lord I must resort to Your indulgence for thus openly & perhaps too warmly treating this subject. I have heard it said that I encourage petitioners and remonstrants-it may be so understood because in the last Session of the Legislative Council, I voted for throwing open the doors of the Council chamber. I receive all Applications from the highest to the lowest, I wish to render Justice to all. If Petitioners are not heard how shall abuses be reformed!--if I have not the confidence of the people at large, I shall be a stranger to their discontents, 'till they break out in murmurs and it may then be too late to apply a Remedy. The papers which shall be transmitted from time to time I expect will vindicate this reasoning, in the interim Your Lordship will please to Justify me in so much as I have not reaped the advantage of those notices and instructions which I am to hope will come to my assistance from Your Lordship in the short period of the absence of a Superior. I have the honor to be with profound deference and respect My Lord Your very obedient and Very faithful servant HENRY HAMILTON The Right Honorable Lord Sydney One of His Majestys Principal Secretaries of State Preamble. ORDINANCE ESTABLISHING TRIAL BY JURY. CHAP. II. An Ordinance to regulate the Proceedings in the Courts of Civil Judicature, and to establish Trials by Juries in Actions of a Commercial Nature and Personal Wrongs to be compensated in Damages. Whereas it is necessary for the Ease and Conveniency of His Majesty's Subjects who may have Actions to prosecute in the Courts of Civil Judi 1 This refers to the proceedings in Council in April, 1784, when a number of citizens of Quebec made application for permission to be present at the debates of the Legislative Council. The Council by a vote of 11 to 5 adopted the following position, "The Council have voted that the Gentlemen who requested admission to hear the Debates this day cannot be admitted. This to serve as an answer to every future application." Reasons of dissent were recorded by Lt. Gov. Hamilton, President of the Council, and Mr. Finlay. Hamilton's reason was, "because our Debates have for object the benefit of the province." The reason for their votes put forth by the leaders of the majority, was that their oath as councillors required them to keep secret all that might be discussed in Council. Mr. Finlay, in his reasons for dissent, sought to prove that no such limitations applied to the proceedings of Council as a legislative body. See Q 23, pp. 235-241. 2 As a result of the representations of Haldimand and Hope what came to him was the following, "I have received the King's Commands to signify to you, that His Majesty has no further Occasion for your Services as Lieutenant Governor of the Province of Quebec, and that it is His Royal Pleasure that you do return to England, leaving with Colonel Hope, who is appointed to succeed you, such Instructions and Documents of Government as are in your possession, and which may be necessary for his guidance." signed. "SYDNEY." Q 25, p. 34. 3 Canadian Archives, Q 62 A-2, p. 601. The Ordinance for regulating the proceedings in the Courts of Civil Judicature, first passed in 1777, (see p. 466) had been renewed every two years, with practically no 18--3-34 Manner of above the Value of 6-7 EDWARD VII., A. 1907 cature established in this Province, that the mode of Administering Justice in the said Courts should be clearly ascertained, and rendered as plain as possible : Be it therefore Ordained and Enacted by His Honour the Lieutenant Governor and Commander in Chief of this Province, by and with the Advice and Consent of the Legislative Council thereof, and by the Authority of the same it is hereby Ordained and Enacted. Art. 1. That in all Causes, or Matters of Property, exceeding the Sum Proceedings or Value of Ten Pounds Sterling, upon a Declaration presented to any one in the actions of the Judges of the Court of Common Pleas by any Person, setting forth the Grounds of his Complaint against a Defendant, and praying an Order £10 Sterling. to compel him to appear and answer thereto, such Judge shall be and hereby is empowered and required in his separate District to grant such an order, whereby the Plaintiff may have and obtain from the Clerk of the Court a Writ of Summons in the Language of the Defendant, to be issued in His Majesty's Name, and attested by name of such Judge, to be directed and executed by the Sheriff of the District where such Court shall have Jurisdiction, and in which the Defendant may be or doth reside, commanding such Defendant to be and appear in such Court to Answer to the Plaintiff on the day appointed by such Judge in the Order on the Declaration, Regard being had to the Season of the Year, as well as to the Distance of the Defendants abode or Place of Service from the Place where the Court may sit. given. Execution not Art 2. Provided always, That a Copy of the Writ of Summons and the to be issued Declaration shall be served on the Defendant Personally, or left at his against Absentees, till Se- House, with some grown Person there belonging to the Family, and in so curity be doing the Service shall be deemed sufficient: Provided nevertherless, that if the Defendant be absent in the Upper Country, or lower Parts of the Province, that is to say, When in or upon any Place beyond the Long Sault on the Ottawa River, or beyond the Oswegatche 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 S Lawrence, and where such Defendant hath not been Personally served with such Summons and Declaration as abovesaid, that no Execution shall issue unless the Plaintiff shall give good and sufficient Security, to be approved by the Court, to refund to the Defendant, or his legal Representative as much as the Defendant, appearing by himself or his legal Attorney within a Year and a Day, may be able to set aside and reverse of the said Judgment, by such the Consideration of the said Judgment in the Court where given, as may be presented in the Conditions expressed in the Security to be given as aforesaid for rehearing of the merits of said Cause. Art. 3. That the said Declaration so to be filed shall not be altered or amended after being filed as abovesaid, unless upon Rule of the Court, and upon payment of Costs. Attachment against the Art. 4. That in all and every Case where one or more Judges of any Court of Common Pleas is or may be satisfied, by the Affidavit of the Body when a Plaintiff, or his Book keeper or Clerk, or legal Attorney, that the DefendDebtor is going to leave ant is Personally indebted to the Plaintiff in a Sum exceeding Ten Founds the Province. Sterling, and may also be satisfied, by the Oath of the Plaintiff or some other Person, that the Defendant is immediately about to leave the Province, and whereby the Plaintiff might be deprived of his Remedy against such Defendant, it may and shall be lawful for one or more Judge alteration, notwithstanding the continued efforts to secure the introduction of trial by jury in civil cases in accordance with the 12th article of the Governor's Instructions (see p. 422). But during the session of 1785, under Lt. Governor Hamilton's administration, on the renewal of the ordinance provision for trial by jury was incorporated. For this the Lt. Governor received the thanks of the mercantile element of both old and new subjects, in an address of May 9th, 1785. See Q 24-2, p. 398. SIONAL PAPER No. 18 8 Defendant red. or Judges of any Court of Common Pleas to grant a Capias or Attachment against the Body of such Defendant, to be directed to the Sheriff in Manner as aforesaid, to hold such Defendant to Bail, for his Appearance at the Return of such Writ, and in Default thereof to commit him to Prison, there to remain until Special Bail may be given by such Defendant, or until Two Days after execution may be obtained by the Plaintiff, if Judgment be in his Favour. Art. 5. Provided always, That if any Defendant so bound in Recognizance by Special Bail, shall or do surrender himself in Open Court, pending the Action, or at any Time within One Month after Judgment obtained, or do surrender himself unto the Sheriff of the District where such Court may have Jurisdiction, at any Time within Fifteen Days after the day on which the Plaintiff might legally have and obtain Execution by Capias ad Satisfaciendum upon Judgment obtained, that then and in such case such Surrender of the Defendant shall be held, taken, and considered as a Discharge of the Persons bound for such Defendant on Special Bail. Art. 6. If on the Day of the Return of the Writ of Summons the Denot ap- fendant does not appear in Person, or by Attorney (Proof of such Service ear, Judgent to be en being produced or made in Court) the Plaintiff shall obtain a Default against the Defendant; and if on calling over the Action on the next Weekly Court Day the Defendant should still neglect to appear, without any good Reason for such his Neglect, the Court, after hearing and receiving Sufficient Proof of the Plaintiff's Demand, shall Cause their final Judgment to be entered against the Defendant, and shall award such Costs thereupon as they shall think reasonable, and issue such Execution as the Law, according to the nature of the Case, may direct. If Defendant Declaration. Art. 7. Provided always, That every Proof that may be offered by the Plaintiff in Support of his Action and Demand, shall be filed in Court, and remain of Record, in the same manner as if the Defendant had appeared and defended the Action. Art 8. Provided always, That the Defendant upon his Appearance at appears, he is the Return Day of the Writ, or in Case of Default upon his Appearance at to answer the the next Weekly Court after such Return, and after payment of Costs of such Default as abovesaid, shall then or on such other Day, as he may obtain from the Court, make his Answer to the Declaration, either in writing or Verbally, as he thinks fit; and if the answer be verbal, the Clerk of the Court shall take down the Substance thereof in writing, and preserve the same among the Records of the Court, and in the said Action. And if the Plaintiff doth not appear at the Return Day of such Writ, or appearing doth not prosecute his Action, the same shall be dismissed, with Costs to the Defendant. Trial by Art. 9. That all and every Person having Suits at Law and Actions in Juries in cer- any of the said Courts of Common Pleas, grounded on Debts, Promises, tain Cases, at Contracts, and Agreements of a Mercantile Nature only, between Merchant the option of the Parties. and Merchant, and Trader and Trader, so reputed and understood accord ing to Law, and also of Personal Wrongs proper to be compensated in Damages, may, at the Option and Choice of either Party, have and obtain the Trial and Verdict of a Jury, as well for the Assessment of Damages, on Personal Wrongs committed, as the Determination of Matters of Fact, in any such Cause: Provided always, That the Agreement of Nine of the Twelve Jurors who shall compose such Jury shall be sufficient and effectual to return a Verdict, and that the same so made and returned, shall be held as legal and effectual to every Intent and Purpose, inasmuch, as if the whole Twelve Jurors had agreed therein; and the Clerk of the Court shall set down the Names of the Jurors on the Register of the Court in every 18-3-34 . English Rules of Evidence adopted in Commercial Cases. Where neither ous of the 6-7 EDWARD VII., A. 1907 case where Verdicts may be returned as abovesaid: Provided also, That in all such Causes and Actions that may be between His Majesty's Natural born Subjects of Great Britain, Ireland, or the Plantations and Provinces in America, the Juries in such causes shall be composed of such natural born Subjects as abovesaid; and in all Causes and Actions between His Majesty's Canadian or new Subjects, the Juries shall be composed of such Canadian or new Subjects; and in all Causes of Actions between natural born Subjects and the Canadians or new Subjects; the Jury shall be composed of an equal number of each, if such be required by either of the Parties in any of the above mentioned Instances. Art. 10. In Proof of all Facts concerning Commercial Matters, Recourse shall be had, in all the Courts of Civil Jurisdiction in this Province, to the Rules of Evidence laid down by the Laws of England. Art. 11. Provided always, And it is Ordained and Enacted, That in all Party is desir. causes before the said Courts of Common Pleas, where the Parties, Plaintiff nor Defendant, are neither of them desirous of a Trial by the Verdict Trial by Jury, of a Jury of and respecting Matters legally within the Cognizance of such Proceedings as formerly. Jury, but that such Trial should be by the Deposition of Witnesses, and by Proofs, as at present used in His Majesty's Said Courts of Common Pleas, the Court shall, after issue joined on the Merits of the Cause, in the manner as hereafter expressed, appoint a Day for hearing the Evidence of Parties, Plaintiff and Defendant, and cause the same to be taken down in Writing by the Clerk of the Court in open Court, and signed and sworn to by each respective Witness, save and except as hereafter provided for Witnesses absent by reason of Sickness, or of departing the Province. Provision for examining Witnesses in case of Sickness, or when about to de part the Province. Limitation of When the Sheriff is concerned, the Art 12. Provided also, That in case of Sickness, and where the Witnesses cannot attend the Court to be ascertained by Affidavit, it may be lawful for the Court in such Cases, and of evident Necessity, after Issue joined as abovesaid, to allow and permit that any one Judge, in the Presence of the Parties, Plaintiff and Defendant, or their Attornies, or in their or either of their Absence, after due Notice signified, may take the Deposition of such Witness in Writing, to be signed and sworn to, and certify and Record the same in the said Court, and there to be of legal Effect; and moreover that such Deposition so taken may be offered and read to the Jury as legal Evidence, if such Cause be to be tried by Jury; and also in Causes instituted in the said Court, where any Witness may be about to depart the Province, and by which means either party might be deprived of his Testimony, to be ascertained by Affidavit, it shall and may be lawful for any Judge of the said Courts to take the Deposition of such Witness, in presence of the Parties, or their Attornies, in the manner as above Expressed, and the same shall be of legal Effect in every Cause in the manner as abovesaid. Art 13. And it is further Ordained and Enacted, That every Issue in Law or Fact, to be formed in any Cause in either of the said Courts of Common Pleas, between the Parties, Plaintiff and Defendant, shall be made and completed, 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 Record in any Cause therein instituted, and to be heard and adjudged upon, any Thing to the contrary notwithstanding. Art 14. That every Writ and Process which ought to be served and executed by the Sheriff, where it shall happen, that the Sheriff may be PersonProcess to be ally interested, and concerned, shall be served and executed by the Coroner of the District in which such Writ, Process, or execution may issue. served by the Coroner. SESSIONAL PAPER No. 18 Of Jurors, their Qualifications. Sheriffs to of Jurors. Art 15. That all Merchants or Traders of lawful Age, and also all Persons of lawful Age being Householders, or occuping Lodgings of the value of Fifteen Pounds per Annum Rent, shall be held and considered qualified as Jurors, and to serve on Petit Juries. Art 16. That the Sheriff of each District shall make out Lists of all make out list Persons so qualified as abovesaid, who may reside in the Cities of Quebec or Montreal, or within the Vicinage or Banlieu thereof, and return the same into the respective Courts of Common Pleas of the District in which such Sheriff may officiate, and in which Return shall be set down the Christian and Surname, and also the Profession, Trade, or Calling, and Place of Abode, of such Persons so returned. Juries to be tation. Art. 17. That from the said general List the Clerk of each Court shall make two separate Lists or Books, the one to contain the names of all Merchants, Persons concerned in Trade, or qualified to serve on Special Juries, and the other List or Book to contain the names of Persons of different Occupations so returned on the said General List by the Sheriff as aforesaid; that the said Lists or Books, when so made, shall be examined by the Judges and Sheriff and corrected, if needful, and shall be of Record and open in the Clerks Office to the Inspection of all Persons, without Fee or Reward. Art 18. That on all and every Cause where a Trial may be moved for and directed to be taken by the Verdict of a Jury, it shall and may be lawful for the Parties, Plaintiff and Defendant, or their Attornies, to strike a Jury from the above Lists or Books so returned into Court, and completed as abovesaid, in the same manner, and under the same Rules, as Special Juries are struck in the Courts of Record in England, (that is to say) from the first List or Book so formed by the Clerk, and approved by the Judges as abovesaid, in all Causes of Mercantile Dispute, or Actions of Damages, where the total Amount, Sum, Dealing, or Matter of Account, Agreement or Transaction between the Parties may exceed Fifty Pounds; and from the second List or Jury Book, where the total Sum as abovesaid may not exceed the said Sum of Fifty Pounds. Art. 19. Provided always, That the said Juries so to be struck from taken in Ro- either of the said Lists, shall be taken from the same in Rotation, and following each other, by commencing at that Part of that List from whence the former or Preceding Jury was struck or taken; and also that in all Causes that may appear to the Court before which they are to be had to be of Intricacy, and that ought to be tried by a Jury from the first List, although the Sum or total Amount may not exceed Fifty Pounds, the Judges of such Court may permit and order the Jury to be struck from the first List, the Party applying for such Jury paying the Difference of Fees between Jurors from the first and the second Jury List or Book. Challenge, or determined agreeable to the Laws of England. List of Jurors to be returned Art 20. That all and every Challenge, or exception to the Pannel, or any particular Juror returned thereon, shall be taken, made and determined upon in Open Court, and conformable to the Laws of England; the Jurors serving on Special Juries as abovesaid, and struck from the first List or Jury Book, shall have and receive Two Shillings and Six pence each for every Verdict to be made and delivered, and before returned into Court; and Jurors struck from the second List or Jury Book, One Shilling each for every Verdict in Manner as aforesaid. Art. 21. That Lists of Jurors, in the manner prescribed by the preceding by the Sheriffs Articles shall be made, by the Sheriffs returned into the several Courts, in the Month and formed in the manner abovementioned in the Month of June in Every Year. of June Yearly. Penalty on attending. Art. 22. That all Persons being duly summoned to attend in any of His Majesty's Courts of Common Pleas to serve as Jurors as abovesaid, and neglecting or refusing so, to do shall be liable to, and may be fined by the |