« AnteriorContinuar »
upon this subject :
laws, and almost dependant upon them, so that they could not be changed in any considerable degree without diminishing the value of the lands themselves, by means of the practical difficulties that would occur in making use of the new modes of conveying. land that would be established in their stead; and therefore he thinks that they ought to be continued. And further, he conceives it will be the more necessary to revive or continue theFrench laws upon this subject, in order to prevent the introduction : of the English laws upon the same subject, namely, the doctrine The praftice of
the English laws : of estates-tail, the statute de donis, the method of defeating that statute by common recoveries, the doctrine of fines, the statute of would be highly uses, and the doctrine of uses in general, and other nice doctrines, the provinces relating to real estates, which are full of so much subtlety, intricacy, and variety, that, if they were to be introduced into this province, they would throw all the inhabitants of it, without excepting even the English lawyers, into an inextricable maze of confusion. For these reasons he apprehends that the English laws upon this subject ought never to be introduced here; and that the former laws of the province relating to it ought for the present tobe revived..
Lastly, as to the French laws concerning dower and the Laws of indeinheritance of lands and the distribution of the goods of in- dower, and the teftates, with respect to such marriages as have been contracted, the effects of and such deaths as have happened, since the establishment of the intestates. civil government in this province, your Majeliy's attorney general' of this province is humbly of opinion, that those laws ought not to be con lidered as necessáry appendages to the property of your Majesty's Canadian subjects in this province, and as having therefore been granted to them by implication in the articles of capitulation and the definitive treaty of peace; because they do not affect the property, or the rights, of the Canadians then in being, to whom alone those grants were made, but only guide and determine the. course and devolution of that property after their deaths among persons that were then unborn. This, therefore, he conceives to be a matter upon which the authority of a legislator may properly be exercised. Anu he further apprehends, that in some time hence a change of the laws relating to these subjects, and especially of those relating to dower and the inheritance of land, would be highlybeneficial to this province, the present excelsive subdivision of the
lands, by repeated partitions of them amongst numerous families, being productive of considerable inconveniencies. But this, he
apprehends, need not be done at present; and he conceives, that, if ever it should be thought adviseable to do it, it' ought to be done by a full and express declaration beforehand of the time at which the proposed changes should take place, with a power given to such persons as disliked them to prevent their taking place in their respective families by express provisions and agreements to the contrary, and thould be accompanied with such temperaments and inodifications as should make the adopting them be in a manner the voluntary act of the persons who were affected by them. But for the present he conceives it might be better to postpone those important changes, and to revive the ancient laws of this province concerning inheritance and dower, and the distribution of intestates estates, as well as those relating to the tenures of land and the power and manner of aliening and mortgaging and otherwise incumbring it. And this one ordinance, reviving the said ancient laws relating to landed property and the distribution of the effects of persons who die intestate, would, as he conceives, be sufficient to preserve the tranquillity of the province, and to give satisfaction to the bulk of the Canadians : at least, he apprehends it would be enough to begin with : and if, upon trial, it should be found necessary to revive some other of the French laws that formerly sublisted in this province, it might be done by another ordinance or two, that might be passed for that purpose, when the neceffity of them should become apparent. By such an ordinance as is above-mentioned passed at present, and by the establishment of an easy and cheap method of administering justice in this province with sufficient expedition, he conceives that the far greater part of your Majesty's Canadian subjects would be contented. This therefore is what he humbly presumes to recommend to your Majesty as the best method which he can suggest for the settlement of the laws of this province, after the fullest consideration of this difficult and important subject.
QUE BEC, September 11th, 1769.
N. B. In
N. B. In the foregoing short report, or opinion, of the attorney
general of the province of Quebec, the particulars of the plan therein recommended for the administration of justice in the province of Quebec are not set forth, (but only the general substance of it is briefly mentioned in these words : * What he has principally observed to be the subject of the “ complaints of the Canadians has been either the expence or “ the dilatoriness of our law-proceedings, which he therefore « conceives stand in need of reformation: and he is of “ opinion, that to establish three courts of general jurisdiction, « in all matters criininal as well civil, in the province, to sit “ every week in the year (with a very few exceptions) in “ the towns of Quebec, Three Rivers, and Montreal, would “ be the most adequate remedy for these complaints.” Now the particulars of this plan are as follows.
Convenient Method of administering Justice in the
Province of QUE B E C.
[N. B. This plan is the fame with that in the foregoing draught of an intended
report of the governour and council of the province of Quebec, which the
T is conceived that the following method of administering justice
would be that which would best suit the circumstances of the province of Quebec and the temper of its inhabitants, and be
upon the whole the fittest of any to be carried into execution there, being nearly the same with that which took place there in the time of
the French government. The province In the first place, it would be proper to divide the province
again into the three districts of Quebec, Three Rivers, and diftricts, or
Montreal, as in the time of the French government; and to call
them fhires, which is the name of the districts into which England Each shire should is divided; and to appoint a separate ministerial or executive officer herit feparate of justice to each of these fhires or districts, to be called, as in
England, the sheriff of the shire, instead of having an officer of
should be divided into three
A separate royal In each of these shires, or distries, there should be a separate
Three Rivers, and Montreal are the only towns in the province. which should These courts should consist of one Englith judge, to be appointed English judge by his Majesty, and a Canadian assistant, or assessor, to be named by the governour of the province. These courts should have full
and a Canadian alfallor.
power to hear and determine all matters, both criminal and civil, arising within their respective jurisdictions, just as the chief justice of the province is impowered to do upon the present establishment throughout the whole province. The English judges should be barristers at law of at least five years standing at the bar ; and they should be such as, besides their skill and knowledge in the law, had a competent knowledge of the French language. This would be almost a necessary qualification, in order that they might be able to understand the evidence given by the French witnesses who would so often be examined before them : and to enable them to do this more readily, and likewise to comprehend the nature and extent of such of the ancient laws and customs of the country as his Majesty shall think fit to revive or continue, would be the principal use of giving them the assessors above-mentioned, who should be Canadian lawyers or notaries of good character and ability. But these Canadian assessors should only affist them with their opinion and advice, without having any vote or authority to decide the causes in conjunction with the judges ; but the whole power of finally deciding them should be vested solely in the English judges.
This employment of the Canadian lawyers, even in this subordinate capacity of assistants and advisers, would be thought a very gracious indulgence in his Majesty by all his Majesty's new Canadian subjects : and many of them, to whom it has been mentioned, have expressed an intire approbation of it. If they were to have an equal degree of authority with the English judges in the final decision of causes, they would be much more likely than the English judges to abuse it, by reason of their connections in the country, and the enmities and partialities that those connections would give birth to: and, besides this, there are other reasons which would make it inexpedient for his Majesty to trust his new Roman Catholic subjects, so lately brought under his allegiance, with so. great a degree of power.
These judges and their assistants should hold their courts every These courts to week throughout the year, excepting one month at Christmas, one
sit every week. week at Easter, and another at Whitsun-tide, which are the three greatest seasons for holydays observed by Christians. And they Thould fit on the Tuesday or Wednesday of every week, to the end