SESSIONAL PAPER No. 18 Our Principal Secretaries of State, and also upon all Occasions and in all Affairs wherein you may receive Our Orders by One of Our Principal Secretaries of State, you shall in all such Cases transmit to Our Secretary of State only an Account of all such Occurrences, and of your Proceedings relative to such Orders :-- G. R. ORDINANCE ESTABLISHING CIVIL COURTS.1 An ORDINANCE, for regulating and establishing the Courts of Judicature, Justices of the Peace, Quarter-Sessions, Bailiffs, and other Matters relative to the Distribution of Justice in this Province.2 Whereas it is highly expedient and necessary, for the well governing of His Majesty's good Subjects of the Province of Quebec, and for the speedy and impartial Distribution of Justice among the same, that proper Courts of Judicature, with proper Powers and Authorities, and under proper Regulations, should be established and appointed : His Excellency the Governor, by and with the Advice, Consent and Assistance of of His Majesty's Council, and by Virtue of the Power and Authority to him given by His Majesty's Letters Patent, under the Great Seal of Great-Britain, hath thought fit to Ordain and Declare; and his said Excellency, by and with the Advice, Consent and Assistance aforesaid, Doth hereby Ordain and Declare, That a Superior Court of Judicature, or Court of King's Bench, be established in this Province, to sit and hold Terms in the Town of Quebec, twice in every Year, viz. One to begin on the Twenty-first Day of January, called Hillary Term, the other on the Twenty-first Day of June, called Trinity Term. In this Court His Majesty's Chief-Justice presides, with Power and Authority to hear and determine all criminal and civil Causes, agreeable to the Laws of England, and to the Ordinances of this Province; and from this Court an Appeal lies to the Governor and Council, where the Matter in Contest is above the Value of Three Hundred Pounds Sterling; and from the Governor and Council an Appeal lies to the King and Council, where the Matter in Contest is of the Value of Five Hundred Pounds Sterling or upwards, In all Tryals in this Court, all His Majesty's Subjects in this Colony to be admitted on Juries without Distinction.* And His Majesty's Chief-Justice, once in every Year, to hold a Court of Assize, and General Goal-Delivery, soon after Hillary Tern, at the Towns of Montreal and Trois-Rivières, for the more easy and convenient Distribution of Justice to His Majesty's Subjects in those distant Parts of the Province. 1 The text of this ordinance is taken from, "Ordinances, Made for the Province of Quebec, by the Governor and Council of the said Province, since the Establishment of the Civil Government. Quebec, 1767." This has been compared with the copy in the Canadian Archives, vol. Q 62 A, pt. 2. p. 500. 2 This and the other ordinances of the period were passed under the authority of the Proclamation of Oct. 8th, 1763, together with the Commission and Instructions given to Governor Murray. Civil Government was not formally established in Canada until Aug. 10th, 1764. This was due to the terms of the Treaty of Paris, of 10th Feb., 1763, which specified that eighteen months were to be allowed for those French-Canadians who cared to leave the country to do so. 3 The first Chief Justice of Canada was William Gregory, appointed in 1764. 4 Accompanying the copy of this ordinance sent to the Home Government, were certain explanatory observations, in which Governor Murray states his reasons for introducing various features. On this clause his observation is as follows:-"As there are but Two Hundred Protestant Subjects in the Province, the greatest part of which are disbanded Soldiers of little Property and mean Capacity, it is thought unjust to exclude the new Roman Catholic Subjects to sit upon Juries, as such exclusion would constitute the said Two hundred Protestants perpetual Judges of the Lives and Property of not only Eighty Thousand of the new Subjects, but likewise of all the Military in the Province; besides if the Canadians are not to be admitted on Juries, many will Emigrate; This Establishment is therefore no more than a temporary Expedient to keep Things as they are until His Majesty's Pleasure is known on this critical and difficult Point." Q 62 A, pt. 2, p. 500. Governor Murray's observation :-"We find, which was not at first apprehended, that the Court of Assize proposed to be held at Montreal Twice every year, will be attended with too much Expense to the Crown, and therefore that Establishment shall be corrected." Ibid. p. 502. 6-7 EDWARD VII., A. 1907 And whereas an inferior Court of Judicature, or Court of Common-Pleas,1 is also thought necessary and convenient, It is further Ordained and Declared, by the Authority aforesaid, That an inferior Court of Judicature, or Court of Common-Pleas, is hereby established, with Power and Authority, to determine all Property above the Value of Ten Pounds, with a Liberty of Appeal to either Party, to the Superior Court, or Court of King's Bench, where the Matter in Contest is of the Value of Twenty Pounds and upwards. All Tryals in this Court to be by Juries, if demanded by either Party; and this Court to sit and hold two Terms in every Year at the Town of Quebec, at the same Time with the Superior Court, or Court of King's-Bench. Where the Matter in Contest in this Court is above the Value of Three Hundred Pounds Sterling, either Party may (if they shall think proper) appeal to the Governor and Council immediately, and from the Governor and Council an Appeal lies to the King and Council, where the Matter in Contest is of the Value of Five Hundred Pounds Sterling or upwards. The Judges in this Court are to determine agreeable to Equity, having Regard nevertheless to the Laws of England, as far as the Circumstances and present Situation of Things will admit, until such Time as proper Ordinances for the Information of the People can be established by the Governor and Council, agreeable to the Laws of England. The French Laws and Customs to be allowed and admitted in all Causes in this Court, between the Natives of this Province, where the Cause of Action arose before the first Day of October, One Thousand Seven Hundred and Sixty-four. The first Process of this Court to be an Attachment against the Body. And whereas it is thought highly necessary for the Ease, Convenience and Happiness of all His Majesty's loving Subjects, That Justices of the Peace should be appointed for the respective Districts of this Province, with Power of determining Property of small Value in a summary Way, It is therefore further Ordained and Declared, by the Authority aforesaid, and full Power is hereby Given and Granted to any one of His Majesty's Justices of the Peace, within their respective Districts, to hear and finally determine in all Causes or Matters of Property, not exceeding the Sum of Five Pounds current Money of Quebec, and to any two Justices of the Peace, within their respective Districts, to hear and finally determine in all Causes or Matters of Property, not exceeding the Sum of Ten Pounds said Currency, which Decisions being within, and not exceeding the aforesaid Limitation, shall not be liable to an Appeal; and also full Power is, by the Authority aforesaid, Given and Granted, to any three of said Justices of the Peace to be a Quorum, with Power of holding Quarter-Sessions in their respective Districts every three Months, and also to hear and determine all Causes and Matters of Property which shall be above the Sum of Ten Pounds, and not exceeding Thirty Pounds current Money of Quebec, with Liberty of Appeal to either Party to the Superior Court, or Court of King's-Bench: And it is hereby Ordered, That the aforesaid Justices of the Peace do issue their Warrants, directed to the Captains and other Officers of the Militia in this Province, to be by them executed, until the Provost-Marshal, legally authorised 1 Governor Murray's observation:-"The Court of Common Pleas is only for the Canadians; not to admit of such a Court until they can be supposed to know something of our Laws and Methods of procuring Justice in our Courts, would be like sending a ship to sea without a Compass; indeed it would be more cruel-the ship might escape, Chance might drive her into some hospitable Harbour, but the poor Canadians could never shun the Attempts of designing Men, and the Voracity of hungry Practitioners in the Law; they must be undone during the First Months of their Ignorance; if any escaped, their Affections must be alienated and disgusted with our Government and Laws" Ibid. p. 502. 2 Governor Murray's observation:- "It is necessary to Observe that the few British Traders living here, of which not above Ten or Twelve have any fixed Property in this Province, are much dissatisfied because we have admitted the Canadians on Juries; the Reason is evident, their own Consequence is thereby bounded. But the Practitioners in the English Law have probably put them out of Humour with the Court of Common Pleas (which they are pleased to call unconstitutional) Ibid. p. 503. 3 Governor Murray's observation:-"We thought it reasonable and necessary to allow Canadian Advocates and Proctors to practice in this Court of Common Pleas only (for they are not admitted in the other Courts) because we have not yet got one English Barrister or Attorney who understands the French Language." Ibid. p. 504. See also, in connection with this and the previous note, Murray's letter to the Lords of Trade, Oct. 29th, 1764, p. 167 and the petition of the Quebec Traders to the King, p. 168 SESSIONAL PAPER No. 18 by His Majesty, shall arrive, and other inferior Officers be appointed for that Purpose; all Officers, Civil and Military, or other His Majesty's loving Subjects, are hereby commanded and required to be aiding and assisting to the said Justices and Officers of Militia in the due Execution of their Duty. And it is further Ordered and Directed, by the Authority aforesaid, That two of the said Justices of the Peace do sit weekly in Rotation, for the better Regulation of the Police, and other Matters and Things in the Towns of Quebec and Montreal, and that the Names of the Justices who are to sit in each Week, be posted up on the Door of the Session-House by the Clerk of the Peace, two Days before their respective Days of Sitting, that all Persons may know to whom to apply for Redress. And whereas there are not at present a sufficient Number of Protestant Subjects, resident in the intended District of Trois-Rivieres, qualified to be Justices of the Peace, and to hold Quarter-Sessions, It is therefore further Ordained and Declared, by the Authority aforesaid, That from henceforth this Province shall be divided into two Districts, to be known and called by the Names of Quebec and Montreal, for the Time being, and until there may be a competent Number of Persons settled at or near TroisRivieres, duly qualified to execute the Office of Justices of the Peace, and the Power of holding such Quarter-Sessions above-mentioned, or until His Majesty's Pleasure be known in that Behalf; and that the said two Districts be divided and bounded by the River Godfroy on the South, and by the River St. Maurice on the North Side. And whereas it is thought very expedient and necessary, for the speedy and due Execution of the Laws, and for the Ease and Safety of His Majesty's Subjects, That a sufficient Number of inferior Officers should be appointed in every Parish throughout this Province; It is therefore Ordered, by the Authority aforesaid, That the Majority of the Householders, in each and every Parish, do, on the Twenty-fourth Day of June, in every Year, elect and return to the Deputy-Secretary, within fourteen Days after such Election, six good and sufficient Men to serve as Bailiffs and Sub-Bailiffs in each Parish, out of which Number the King's Governor, or Commander in Chief for the Time being, with the Consent of the Council, is to nominate and appoint the Persons who are to act as Bailiffs and Sub-Bailiffs in each Parish; and such Nomination or Appointment is to be notified by the Deputy-Secretary to the respective Parishes, and also published in the QUEBEC-GAZETTE, some Time in the last Week in August in every Year; and the said Bailiffs and Sub-Bailiffs, so nominated as aforesaid, are to enter upon, and begin to execute their respective Offices on the Twenty-ninth Day of September in every Year. No Person to be elected a second Time to the same Office, except the whole Parish has served round, or that those who have not, are laid aside for some material Objection, which must be supported by Proof: But that there may never be an entire Set of new Officers at one Time, but that those who remain may be able to instruct those who enter into Office, one of those Persons who served as Sub-Bailiffs in each Parish, to be elected and nominated Bailiffs of said Parish the ensuing Year. If a Bailiff dies in his Office, the Governor, or Commander in Chief, will nominate one of those returned by said Parish to serve as Sub-Bailiffs for the Remainder of the Year; and when a Sub-Bailiff happens to die in Office, the Bailiffs shall assemble the Parish upon the next publick Feast Day insuing his Decease, who shall proceed to elect and return, as aforesaid, another Sub-Bailiff. The Election of Bailiffs and Sub-Bailiffs for this present Year, to be on the Twentieth Day of October; their Names to be returned immediately after the Election : Their Nomination will be notified and published by the Deputy-Secretary as soon as may be, and they shall enter upon, and begin to execute their respective Offices, on the First Day of December, but all Elections, &c. after this Turn, shall be upon the Days and Times above-mentioned and appointed for that Purpose. The Bailiffs are to oversee the King's High-ways and the publick Bridges, and see that the same are kept in good and sufficient Repair; to arrest and apprehend all Criminals, against whom they shall have Writs or Warrants, and to guard and conduct 1 Governor Murray's observation :-" We called them Bailiffs, because the Word is better understood by the New Subjects than that of Constable." Ibid. p. 510. 6-7 EDWARD VII., A. 1907 them through their respective Parishes, and convey them to such Prisons or Places as the Writ or Warrant shall direct: They are also to examine all Bodies that are exposed, and on whom any Marks of Violence appear, in Presence of five reputable Householders of the same Parish, whom he is hereby impowered to summons to inspect the same, and report in Writing the State and Circumstances thereof to the next Magistrate, that a further Examination may be made therein if necessary; but this to be done only where the Coroner cannot by any Possibility attend, which in this extensive Province may frequently happen. Where any Disputes happen concerning the Breaking or Repairing of Fences, upon Complaint made to the Bailiff, he shall summons the Defendant, who is to choose three indifferent Persons, and the Plaintiff three more, and these six, the Bailiff presiding, to decide the Dispute; from their Sentence either Party may appeal to the QuarterSessions; the Person found in Fault to pay One Shilling and no more, to the Person who shall draw up the Decision. These Bailiffs to be sworn into their Office by the next Justice of the Peace, as soon as may be after their Nomination as aforesaid, and the said Oath to be returned to the next Quarter-Sessions by such Justice. GIVEN by His Excellency the Honorable JAMES MURRAY, Esq; CaptainGeneral and Governor in Chief of the Province of QUEBEC, and Territories thereon depending in America, Vice Admiral of the same, Governor of the Town of Quebec, Colonel Commandant of the Second Battalion of the Royal American Regiment, &c. &c. In Council, at Quebec, the 17th of September, Anno, Domini, 1764, and in the Fourth Year of the Reign of our Sovereign Lord GEORGE the III, by the Grace of GOD of Great-Britain, France, and Ireland, KING, Defender of the Faith, &c. &c. By Order of His EXCELLENCY in Council, Governor Murray to the Earl of Halifax.1 JA: MURRAY. QUEBEC 15th Oct 1764 MY LORD When the Commission His Majesty had been gratiously pleased to honor me with as Governor of this Province arrived at Quebec, The Gentlemen who had till then acted as Lieu Governors of Montreal and Trois Rivieres chose Still to Continue so in their Military Capacitys, and declared I could have no Command over the Troops in their respective Districts.2 The Regard I have for my Royal Masters Service which must ever make me Studious to Obviate, any real or possible Motive of Dissagreement, amongst his officers, induced me to Wave a Right which appeared to myself plain, incontestable, and indeed necessary for the Governor of this Province; I however laid the same before the Commander in Chief, and at the same time sent him a Coppy of my Military Commission, as Governor of the Town and Dependencies of Quebec, Coppys of the Letters which have pass'd on this Occasion, I have the honor to lay before your Lordship; And as I plainly forsee Mr Gage means, to divest me of all Military Authority, I should be Deficient in my Duty was I not to represent to your Lordship the Inconveniencys to His Majestys Service, which in my Opinion, must necessarly happen from such a Step. It must be allowed that without a Military fforce this lately Conquerd Province cannot be Govern'd, there doeth not exist in it above One hundred protestant Subjects 1 From Public Record Office, as copied in Canadian Archives, vol. Q 2, p. 206. 2 The friction which developed between Murray at Quebec and Gage and Burton at Montreal and Three Rivers, and afterwards Burton and Haldimand at these places, is evidenced in numerous letters between these officers and with the Home Government, as given in various volumes of the Haldimand Papers, e. g. B 1, B 2, B 6, B 9, and in Q 2, in Canadian Archives. 3 In Aug. 1763, upon Sir Jef. Amherst being granted leave to return to Britain, Maj. Gen. Gage was appointed, for the time, Commander in Chief of the Forces in America. In Sept., 1764, Sir Jef. Amherst having decided not to return to America, Gen. Gage received his regular Commission as Commander in Chief. See Calendar of Home Office Papers, 1760-1765, Nos, 967 & 1449. SESSIONAL PAPER No. 18 exclusive of the Troops, And by my instructions of these hundred Protestants must be composed the Magistracy, But what Force, what weight, can such a Magistracy have, unless the Supreme Magistrate has the Disposition of the Military Force; if he has not, it is to be apprehended that the People will be oppressd by the Soldiery, that the Civil Governor, and his Officers, will become Contemptable, and in place of being the means of preserveing order, and promoteing the happiness of the Subject, they may from the Natural Jealousy that such an Establishment will produce become the bane of Peace, As the weak efforts they will of course make in Support of their Authority, can be productive of Nothing but Vexation, and Confusion. The Canadians are to a man Soldiers, and will naturally conceive that he who Commands the Troops, should govern them; I am convinced at least it will be easyer for a Soldier to introduce and make palateable to them Our Laws, and Customs, than it can be for a Man degraded from the Profession of Arms; It may be impertinent to say more on a Subject I think so obvious, I have only therefore to entreat your Lordship may be assured that this Remonstrance proceeds from Nothing, but the desire, and Anxiety I have to execute the trust reposed in me, with Propriety, and to the Satisfaction of His Majesty, and his Servants. I by no means think it right, That the Governor of Quebec should be upon the American Staff. His Appointments are no doubt Sufficient to Support the Dignity of his Office, and the Occupations of it, will necessaryly require his immediate Attendance in the Province, Whereas that of the General Officers of this Establishment will beyond a doubt be necessary in the upper Countrys, where the Posts to watch the Indians, and to regulate the Trade with them will be established; All I plead for is the necessity of having the Disposition of the Troops destined for the Security of the Province intrusted to my care, that they may pay me the usual Complements, and receive from me the Parole; I doe not even desi e to interfere with the Economy of those Troops, that may be left to the Senior Officer in the Province or the nearest Brigadier upon the Staff. If however for reasons I do not forsee, His Majesty shal think it expedient that no Civil Governor in America shal have any Military Command, I have only to Lament my Singular ill fortune, in being the first Man upon the Spot with his Regiment, and that in his own Garrison too, who was Commanded by a Junior Officer, in a Country where he had the honor to exert his Military facultys to the Satisfaction of His Royal Sovereigns.1 I have the honor to be with the utmost Truth and Regard My Lord, To the Right Honble The Earl of Hallifax JA: MURRAY PRESENTMENTS OF THE GRAND JURY OF QUEBEC.2 Presentments of Oct' Sessions made at a Continuance thereof by Adjournment held at the Sessions house in the City of Quebec the 16th Oct 1764 by the Grand Jury in, and for the said District represent. 1. That the Great Number of inferior Courts establish'd in this province with an intention to administer Justice are tiresome litigious and expensive to this poor Colony as they very often must be attended with the disagreeable necessity of appeals and of course of many exorbitant fees. 1 In another letter to Halifax, Oct. 30, 1764, complaining of the interference of Gage and Burton, Murray attributes their attitude to jealousy of his promotion to be Governor of Quebec, and suggests that Burton should be removed from his command at Montreal. Replying to his representations, Halifax informs Murray, in his despatch of Jan. 12, 1765, that no change is to be made in the system of military commands in North America, but that Burton had been instructed not to interfere in civil affairs. See Canadian Archives vol. Q 2, pp. 337 & 342. 2 Canadian Archives; Dartmouth Papers, vol. 1, p. 29. It will be observed that the criticism is largely directed against certain features of the Ordinance of Sept. 17, 1764. |