or, if your Majesty should declare that they were not meant to introduce immediately any part of the laws of England into those provinces, but only to promife and affure your Majesty's British fubjects that your Majefty would, in due time and place, and by particular and exprefs promulgations, introduce fome felect parts of the laws of England that were more immediately conducive to their welfare and fatisfaction; in either of these cases we beg leave to fubmit it to your Majefty's confideration, whether the ordinances abovementioned, of the 17th of September and the 6th of November, can be deemed of fufficient validity to introduce any part of the laws of England that were not already established by your Majefty's faid proclamation. Our reasons for doubting this are as follows:

commiffion to

certain degree of

municated to

ercifed with the

cil and aflembly;

Your Majesty by your commiffion to General Murray, dated the By the King' 21ft day of November in the 4th year of your Majefty's reign, to the governour a be governour in chief of this province, was pleafed to delegate unto legislative auhim a certain limited legislative authority, to be exercifed by him thority is comby and with the advice and confent of your Majefty's council of him, to be exthe province, and of the general affembly of the freeholders and advice and conplanters in the fame therein directed by your Majefty to be fum- fent of the coun moned, to wit, an authority to make, conftitute, and ordain laws, ftatutes, and ordinances for the public peace, welfare, and good government of the faid province, not repugnant, but, as near as may be, agreeable to the laws and ftatutes of your Majefty's kingdom but none to be of Great Britain. But your Majefty did not in any part of the faid exercised with commiffion delegate either this or any other legislative power to your of an assembly. faid governour to be exercised by him with the advice and confent of the council only, without the concurrence of an affembly. Now no affembly of the freeholders and planters has hitherto been fummoned; confequently all the ordinances that have hitherto been made, fo far as they have a legislative tendency, have been made without any warrant or authority from your Majefty's commillion to your governour, and perhaps may, upon that account, be justly con

tended to be null and void.

If this be fo, the words in the ordinance of the 17th of September 1764, which direct the court of King's Bench to determine all civil and criminal causes agreeably to the laws of England, and the other words of that ordinance, and of the ordinance of the 6th of

D

November

out the confent

A very limited

legiflative au

by a private in

exercised by the

fent of the

A doubt con

cerning the le

method of com

thority.

November following, which purport to introduce the laws of England into this province, can have no legal operation to change the laws which were then fubfifting in the country; and the ordinance of the 17th of September must be confidered only as an executive act of government, erecting and conftituting courts of judicature in the province for the adminiftration of the laws in being, whatever thofe laws might be; and in this view it is certainly a legal and valid ordinance, because your Majefty had, by an exprefs claufe in your commiffion aforefaid, given your faid governour full power to erect fuch courts with the advice and confent of the council only.

to

any

It is true indeed that your Majesty did give a private inftruction thority is given your late governour, purporting to communicate to him a certain to the governour degree of legislative authority to be exercised by him, by and with ftruction, to be the confent of the council only, without any affembly; to wit, an advice and con- authority to make fuch rules and regulations as shall appear to be Council only. necessary for the peace, order, and good government of the faid province, taking care that nothing be paffed or done that shall any ways tend to affect the life, limb, or liberty of the fubject, or to the impofing any duties or taxes. But we fubmit it to your Majesty's gality of this confideration, whether a power of this kind can be communicated by municating a other inftrument than letters patent under your Majesty's great feal legiflative au- of Great Britain, publicly read and notified to the people, to the end that the acts done by virtue of them may have a juft claim to their obedience; for otherwise they may alledge that they are faithful and loyal subjects to your Majefty, and ready to pay obedience to every thing that your Majefty's felf fhall ordain, and likewife to every thing that shall be ordained by your Majefty's governour by virtue of powers properly communicated to him by your Majefty, that confequently they will obey him in every thing he shall do by virtue of the powers conveyed to him in your Majesty's commiffion which has been publicly read to them; but that in the things not warranted by the faid commiffion, but faid to be done in pursuance of certain private inftructions that have not been made known to them, and which they are therefore uncertain whether he has received or not, they cannot presume that he acts by your Majefty's authority, and therefore are not bound to obey him. For this reason we humbly apprehend, that the private inftruction beforementioned cannot have legally conveyed to your Majesty's governour

and

and council the legislative authority mentioned in it, small and narrow as it is.

The legislative authority men

inftruction is too

the introduction

But fecondly, if a private inftruction fhould be deemed to be a legal method of communicating a legislative authority, yet the tioned in this power conveyed to the governour and council of this province by fall to warrant the inftruction above-mentioned is much too confined an authority of the laws of to warrant the general introduction of the English laws; particulaly England. of the criminal laws, which all affect either life, or limb, or liberty; and the process of arrefts of the body in civil fuits for debt and trespass; and the power of committing perfons to prifon for contempts of court committed in the prefence of your Majefty's judges; and that of granting attachments of the body for difobedience or refiftance to the orders of your Majefty's fuperiour courts of judicature, when fuch acts of difobedience or refiftance are committed out of court; which all immediately affect the perfonal liberty of your Majesty's fubjects in this province.

These are the reasons upon which, we conceive, the legality of the introduction of the laws of England into this province by the provincial ordinances above-mentioned may be called in question.

But these reasons have no relation to the other high instruments of government by which these laws may be supposed to have been introduced here, namely, the articles of capitulation in 1760, the 4th article of the definitive treaty of peace, and your Majesty's royal proclamation of the 7th of October 1763. If these inftruments have introduced the laws of England, they may have a legal existence in this province, notwithstanding the want of legal authority in the two provincial ordinances above-mentioned. But if your Majesty should determine that these inftruments have not introduced the laws of England into this province, then, as we conceive, it will follow, that the whole body of thofe laws has not yet been legally introduced into it, but that those parts only of the laws of England have a legal existence in this province which are contained in the acts of parliament above-mentioned, which by their own import and operation, and without needing any new inftrument of government to introduce them, extend to all your Majesty's dominions in America.

Inconveniencies

arifing from the.

We will now proceed to lay before your Majefty the principal prefent ftate of inconveniencies under which the Canadians labour from the ministration of present ftate of the laws and methods of adminiftering juftice in this province.

the laws and ad

juftice.

The uncertainty

of the laws.

The first and greatest inconvenience arifing from the present state of the laws in this province is the uncertainty of them, and the doubts that are entertained concerning the legal continuance of the ancient laws and cuftoms that were obferved here in the time of the French government. This is a caufe of great uneafinefs and anxiety to perfons of both nations in many of the ordinary tranfactions of life; infomuch that it would be a great improvement of the condition of the province if either the English laws, or the old laws and cuftoms of the country, were established by fome new act of government, conceived in the most clear and pofitive words that can be made use of, with an exprefs exclufion or abolition of the other laws, which may be imagined to have hitherto been in force. For by this declaration in favour of either of the systems, your Majefty's fubjects would know what they had to expect for themselves and their families with refpect to their inheritances, purchases, mortgages, contracts, and other civil rights and privileges from the operation of the laws; and would in confequence thereof proceed to make fuch regulations of their affairs by particular agreements and fettlements, and by their laft wills and teflaments, as would protect them against the inconveniencies which they might apprehend themfelves to be exposed to from fuch parts of the established fyftem of laws as they did not approve. We do not mean by this to infinuate, that fuch an immediate establishment of one of these systems of law, to the intire and express abolition and exclufion of the other, would be the beft remedy that could be applied to this evil; but only to reprefent to your Majesty our idea of the greatnefs of this inconvenience, fince even fuch a cure would be defireable. What is the best remedy that can be applied to this evil is, as we conceive, a point of the greateft difficulty, and fit only to be determined by the wifdom of your Majefty's councils; though in obedience to your Majefty's commands, we fall humbly fuggeft to your Majefty, in the fubfequent part of this report, fome of the different methods that, as we apprehend, may be taken for this purpose, with the advantages and difadvantages with which they will be refpectively attended. But before we proceed to

confider

confider this arduous fubject, we beg leave to lay before your Majefty fome other and much smaller inconveniencies arifing from the present state of the courts in this province, together with a plan for the administration of justice for the time to come, which we humbly conceive to be likely in a great measure to remove them.

veniencies at

These inconveniencies are the expensiveness of law proceedings, Other inconwhich is confiderably greater than in the time of the French tending the progovernment, the tedioufnefs of them, and the severity of the prefent fent state of jumethod of proceeding in civil suits by arresting and imprisoning the province. defendant's body.

dicature in this

law proceedings.

The expences attending law-fuits arise evidently from two different The expences of fources, the fees of the officers of the courts of juftice, and those of the attornies and advocates whom the parties employ in the management of their caufes. The former are capable of being properly regulated, as the perfons to whom they are due are all fervants to your Majefty, and under the immediate controul of your Majefty's governour and council; and measures have been already taken to ease your Majefty's fubjects in this province of fome part of these fees: your Majefty's chief juftice and clerk of the crown have remitted those that used to be taken by them in the fupreme court; and those of the attorney-general for the conduct of criminal profecutions have always been charged to your Majefty: and if those which are taken by the clerk of the fupreme court for the civil business that is tranfacted there, and by the provoft-marshal, or fheriff, and his bailiffs, for their summonfes, arrefts, and other ministerial business done by them in the courfe of the proceedings, and those which are taken in the court of Common Pleas, or the quarterly and weekly courts of the juftices of peace, by the feveralofficers of thofe courts, are found to be unreasonable, it will be easy to reduce them to a more moderate ftandard by a provincial ordinance for that purpose, if your Majefty will condescend to make fuch a reasonable addition to the falaries of these feveral officers as fhall be a compenfation for fuch diminution of their fees. The other caufe of the expentiveness of law-fuits is the rate of the fees of the attornies and advocates. These fees, it is evident, are not capable of a like reduction with the former, but must always be such as the parties and their lawyers fhall agree upon; fince it is

the