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6-7 EDWARD VII., A. 1907

An ORDINANCE, In Addition to an Ordinance of His EXCELLENCY the Governor and Council of this Province, of the Seventeenth of September, 1764, intituled, "An "Ordinance for regulating and establishing the Courts of Judicature in this Province."

WHEREAS it has been often complained of, That there being no more than two Terms in the Year, appointed for holding His Majesty's Supreme-Court of Judicature, and Courts of Common Pleas within this Province, is a Delay in obtaining Justice, and a great Prejudice to publick Credit; for Remedy whereof, Be it Ordained and Declared, by His Honour the President and Commander in Chief of this Province, by and with the Advice, Consent and Assistance of His Majesty's Council, and by Authority of the same, It is hereby Ordained and Declared, That a new Term is by Virtue of this Ordinance established and added to the two former Terms, called Hillary and Trinity Terms, which said new Term shall be called Michaelmas Term, and shall commence and be held yearly, for the Dispatch of publick Business in the said Supreme Courts and Courts of Common Pleas respectively, on every Fifteenth Day of October, with the same Number of Return Days therein as is practised in the said two other Terms, called Hillary and Trinity Terms, with the same Liberty of appealing from the Judg ments therein to be given, and all other Rights and Privileges as is and are established by an Ordinance of His Excellency the Governor and Council of this Province, of the Seventeenth of September, 1764, Intituled, "An Ordinance for regulating and estab "lishing the Courts of Judicature in this Province," or by any other Ordinance in Addition to or in Amendment or Explanation thereof: And all Writs and Process whatsoever hereafter to be lawfully and regularly sued out of any of the said Courts, and made returnable the first or any other Return-Day of the said Term, called Michaelmas, by this Ordinance established, are hereby declared to be good and valid.

GIVEN by the Honorable PAULUS ÆMILIUS IRVING, Esq; President of His Majesty's Council, Commander in Chief of this Province, and Lieutenant-Colonel of His Majesty's Army, at the Castle of Saint Lewis, in the City of QUEBEC, this 26th Day of July, in the Sixth Year of His Majesty's Reign, and in the Year of Our Lord One Thousand Seven Hundred and Sixty-six.

By Order of the Commander in Chief of the Province,
JA. POTTS, D.C.C.

P: ÆMIS. IRVING.

REPORT OF ATTORNEY AND SOLICITOR GENERAL REGARDING THE CIVIL GOVERNMENT OF QUEBEC.2

To The Right hoñble the Lords of the

Committee of Council for Plantation affairs.

MY LORDS,-In humble obedience to your Order of the 19th of Novem' last wherein it is recited, that his Majesty having been pleased, to refer to your Lordships several memorials and Petitions from His Majesty's Subjects in Canada as well British as French, complaining of several of the Ordinances and proceedings of the Governor and Council of Quebec, and of the present Establishment of Courts of Judicature, and other Civil Constitutions; Your Lordships had on that Day, taken the said paper into your Consideration, together with a Report3 made thereupon by the Lords Commrs for Trade and plantations dated the 24 Sept last and finding that the said Lords Commrs had proposed another System of Judicature to be substituted in lieu of that which is now subsisting You thought it proper to Order, That the said Memorials Petitions, and Reports (which were thereunto annexd) should be referr'd to Us, to consider and Report Our Opinion, and observations thereon, together with such alterations to be made in what is proposed in the said Report of the Lords Commrs for Trade and plantations,

1 "Ordinances, made for the Province of Quebec, &c." 1767, p. 79. Given also in Canadian Archives, Q. 62 A pt. 2, p. 518. 2 Canadian Archives, Dartmouth Papers, M 383, p. 170.

3 See note 3, p. 171.

SESSIONAL PAPER No. 18

and such other regulations & propositions, as we should think fitt to suggest for the forming a proper plan of Civil Government for the said province of Quebeck; and to that end we were directed to take into our Consideration such parts of the annex't report of Governor Murray,' upon the state of the said province as relate to the Civil Government thereof whilst the same was Annex'd to the Crown of France, And were also required to send for Lewis Cramahé Esq' Secretary to Governor Murray and Fowler Walker Esq Ag nt for the said Province of Quebec, who were Order'd to attend us from time to time, to give us such further Lights and information as might be requisite for the purpose aforementioned.

We have perused the several papers referr'd to us, together with the said two Reports and have also been attended by the Gentlemen named in your Order; and upon the whole matter, beg leave humbly to submit to your Lordships such Reflections as have occurred to us in the Course of that imperfect consideration, which we have been Able at this Busy Season of the year to give to the Great subject of the Civil Government of Quebec and the propositions made by the Lords Commrs of Trade and plantations.

My Lords, it is evident that Two very principal sources of the Disorders in the province have been. 1st The attempt to carry on the Administration of Justice without the aid of the natives, not merely in new forms, but totally in an unknown tongue, by which means the partys Understood Nothing of what was pleaded or determined having neither Canadian Advocates or Sollicitors to Conduct their Causes, nor Canadian jurors to give Verdicts, even in Causes between Canadians only, Nor Judges Conversant in the French Language to declare the Law, and to pronounce Judgement; This must cause the Real Mischiefs of Ignorance, oppression and Corruption, or else what is almost equal in Government to the mischiefs themselves, the suspicion and Imputation of them.

The second and great source of disorders was the Alarm taken at the Construction put upon his Majesty's Proclamation of Oct. 7th 1763. As if it were his Royal Intentions by his Judges and Officers in that Country, at once to abolish all the usages and Customs of Canada, with the rough hand of a Conqueror rather than with the true Spirit of a Lawful Sovereign, and not so much to extend the protection and Benefit of his English Laws to His new subjects, by securing their Lives, Liberty's and propertys with more certainty than in former times, as to impose new, unnecessary and arbitrary Rules, especially in the Titles to Land, and in the modes of Descent, Alienation and Settlement, which tend to confound and subvert rights, instead of supporting them.

1st To the first of these Evils the Order made by your Lordships on the 15th of Nov last founded on the Report of the Lords Commrs of Trades and plantations, requiring the Gov' & Commander in Chief of the province (by an additional Instruction) to Publish an Ordinance for admitting Canadian Jurors, in the several Cases therein express'd, and for permitting Canadian, Advocates, Attorneys, and Proctors, under proper regulations, provides an adequate Remedy.

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2 To the Second Evil the Lords Commirs of Trade and plantations by their Report, have apply'd themselves with great Care, ability and Judgement, to suggest Remedys, by pointing out the defects in the late Ordinance of Sept 1764 and reforming the Constitution of Justice; We concur with their Lord in the objections made to the Ordinance; And upon the several articles of the Plan laid Down in that report, the following observations Occur to Us, both for the Confirmation and Improvement of them.

1 The first Article proposes a Court of Chancery consisting of the Gov" and Council, who shall also be a Court of Appeals, from whom an appeal will lie to the King in Council; By this Article the Lords of Trade very rightly mean to Invest the Gov and Council with Two different Jurisdictions; The One as a Court of Equity, to give relief originally in that Capacity the other as a Court of Errors, to review in the second Instance the Judgements of the Court of Common Law, mentioned in the next Article.

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6-7 EDWARD VII., A. 1907

24 The Second Article proposes a Superior Court of Ordinary Jurisdiction, uniting all the proper powers in Criminal and Civil Cases and matters of Revenue, in this Court, it is recommended that a Chief Justice should preside, Assisted by three puisne Judges; These are required to be conversant in the French Language, and that one of them particularly should be knowing in the French usages.

This proposition appears to us well conceive'd; and we submit to your Lordships, whether it may not be adviseable, that they should be instructed to confer sometimes with the Canadian Lawyers most respected for Learning, Integrity and Conduct, who may prove of the greatest assistance to English Judges. Competent Salarys for the Encouragement of Able and Worthy men seem absolutely necessary in this Establishment, with a due distinction between the Chief Justice and his Brethren. The new Judge of Vice Admiralty for America has appointments of £800 per Annum.

3d The Third Article relates to Terms for the sitting of the Superior Court at Quebec, either according to the Terms appointed at Westminster, or as may be more convenient. This matter must be accomodated to the Seasons, Climate and convenience of the people in their Tillage and other General employments, therefore it seems proper to be left to the future Judgement of the Gov' Chief Justice, and Principal servants of the Crown, entrusted with the Government of the province and ought to be fix'd by Ordinance.

4th The Fourth Article proposes four Sessions of Assize, Oyer and Terminer, and (Foal Delivery at Quebec, with like special Commissions, once or oftener in the year at Trois Rivieres and Montréal. We submit to your Lordships, that it may be unnecessary to lay down any particular Rules for holding four Sessions in the manner mentioned at Quebec; because all Civil and Criminal Causes arising in that District may be tried at Bar in Term time, or (as the legal Expression is) in Bank By Order of the Judges, or under the General powers of the supreme Court, As to the Circuit Courts to be held once, or perhaps twice in the year (which seems better) at Trois Rivieres and Montreal, We think, that it may be proper to require that the Judges shall continue in each of those places, at the least, for a Certain Number of Days to give time and opportunity for the resort of partys and the convenient Dispatch of Business, in like manner as was done by Henry the 8th in establishing the Courts of Great Sessions for Wales, and by the Parliament in his late Maj's Reign, when the Circuit Courts were settled for Scotland.

5th The Fifth Article recommends the Distribution of the province into three Countys or Districts, of which, Quebec, Montreal, and Trois Rivieres shall be the three Capital Towns, and that an Annual sheriff shall be named for each.

We are humbly of opinion that this Distribution of the province is more natural and convenient than the plan lately foliowed by the Governor and Council, and it will be more agreeable to the People, as it is conformable to their Antient Division of the Country. But considering the difficulty of procuring English and protestant sheriffs, especially at Trois Rivieres (where at present only Two persons who are half pay Officers reside thus qualified) it may deserve consideration whether such Sheriff should not serve longer than one year, till such time as the gradual increase of Inhabitants may facilitate an Annual Rotation; or whether the Annual Sheriff of Quebec may not also serve that office for Trois Rivieres This will oblige him, to appoint two Deputys or under Sheriffs, that is one for each District, And if this method be taken, the Sheriff may be made an Annual Officer, because Quebec can afford sufficient number of proper persons to supply the Rotation, and Montreal. (it is agreed) Can do the like.

6th The Sixth Article proposes to give the Justices of Peace in the three several Districts, at their General Quarter Sessions, Power to determine finally all causes not exceeding the value of Ten pounds (the Title to Lands not being in Question) with a Jury where it exceeds Five pounds an without one where it falls under that sum, it gives also to Two Justices in Petty Sessions, similar Authority in similar cases, where the value of the matter in dispute is not more than Forty Shillings. The latter Authority appears to us well proposed; but we submit, whether it may not be better to reserve the Jurisdiction in matters exceeding that value as far as Ten pounds to be determined in Quebec, By proceeding in nature of the Civil Bill in Ireland before the

SESSIONAL PAPER No. 18

Judges of the superior Court, or by proceeding in Nature of the summary Bench; Actions at Barbadoes, and in like manner in the Circuit Courts at Trois Rivieres and Montreal twice in the year; The value of Ten pounds is considerable in such a Colony and the reputation of the Justices of Peace is, as yet scarce enough establish'd for such a Jurisdiction; Under this Article We beg leave to suggest that in the Commission of the Peace for each District it may be useful and popular and endear his Majesty's Government to his new Subjects; if one or Two Canadians should be appointed Justices, with the others who are British, particularly if Protestants can be found fit for that Office.

7th The seventh and last point mentioned in the Report of the Lords of Trade, on which we shall observe, is that Article. wherein they propose, that in all Cases where Rights and Claims are founded on events prior to the Conquest of Canada the several Courts shall be Govern'd in their proceedings, by the French usages and Customs which have heretofore prevailed in respect to such property.

This proposition is undoubtedly right, as far as it goes, in respect of Cases which happen'd, antecedent to the Conquest; but we beg leave to take Occasion from hence, to enlarge a little on this subject of the Rule of Judgement to be observed in the Courts of Quebec as it is of the greatest moment to the honor and Justice of the Crown, and to the Peace and prosperity of the Province.

There is not a Maxim of the Common Law more certain than that a Conquer'd people retain their antient Customs till the Conqueror shall declare New Laws. To change at once the Laws and manners of a settled Country must be attended with hardship and Violence; and therefore wise Conquerors having provided for the security of their Dominion, proceed gently and indulge their Conquer'd subjects in all local Customs which are in their own nature indifferent, and which have been received as rules of property or have obtained the force of Laws, It is the more material that this policy be persued in Canada; because it is a great and antient Colony long settled and much Cultivated, by French Subjects, who now inhabit it to the number of Eighty or one hundred thousand. Therefore we are humbly of opinion, that the Judges to be employed by his Majesty in this province will answer all the ends of their trust, both as to the King and to the people, if their conduct in Judicature be modell'd by the following General Rules.

1st First in all personal actions grounded upon Debts, promises, Contracts and Agreements, whether of a Mercantile or other nature, and upon wrongs proper to be compensated in damages, to reflect that the substantial maxims of Law and Justice are every where the same. The modes of proceeding and Trial, and perhaps in some degree also the strict Rules of Evidence may vary, but the Judges in the province of Quebec cannot materially err, either against the Laws of England, or the antient Customs of Canada; if in such Cases they look to those substantial maxims.

24 Secondly in all suits or Actions relating to Titles of Land, the Descent, Alienation, Settlements and incumberances of Real property, We are humbly of opinion, that it would be oppressive to disturb without much and wise deliberation and the Aid of Laws hereafter to be enacted in the province the local Customs and Usages now prevailing there; to introduce at one Stroke the English Law of Real Estates, with English modes of Conveyancing Rules of Descent and Construction of Deeds, must occasion infinite confusion and Injustice. British Subjects who purchase Lands there, may and ought to conform to the fix'd local Rules of Property in Canada, as they do in particular parts of the Realm. or in the other Dominions of the Crown. The English Judges sent from hence may soon instruct themselves by the assistance of Canadian Lawyers and intelligent Persons in such Rules, and may Judge by the Customs of Canada, as your Lord hips do in Causes from Jersey by the Custom of Normandy; It seems reasonable also, that the rules for the Distribution of personal property in Cases of Intestacy and the modes of assigning and Conveying. It should be adhered too for the present.

3d Thirdly in all suits entertained before the Gov' and Council, as a Court of Chancery or Equity, it is obvious, that the General Rules of Law and Justice must be the same as in the other Courts, according to the subject matter of the suit with this 18-3-12

6-7 EDWARD VII., A. 1907 difference only, that the relief is more compleat and specific and adapted to supply the Defects, or allay the Rigor of those Rules.

4th Fourthly in Criminal Cases, whether they be Capital Offences or misdemeanors, it is highly fitting (as far as may be) that the Laws of England be adapted in the Discription and Quality of the offence itself, in the manner of proceeding to charge the party to Bail or detain him. The Certainty, the Lenity of the English Administration of Justice and the Benefits of this Constitution will be more peculiarly and essentially felt by his Majesty's Canadian Subjects, in matters of Crown Law, which touch the Life, Liberty and Property of the Subject, than in the conformity of his Courts to the English Rules of Real and Personal Estates.

This Certainty and this Lenity are the Benefits intended by his Majesty's Royal proclamation, so far as concerns Judicature. These are Irrevocably Granted and ought to be secured to his Canadian subjects, according to his Royal Word. For this purpose it may not be improper upon the appointment of a new Gov' with a new Commission revised and Consider'd by your Lordships, to direct that Governor to publish an explanatory proclamation in the Province, to quiet the minds of the People as to the true meaning of the Royal proclamation of Oct 1763 in Respect to their local Customs and usages, more especially in Titles of Land and Cases of Real property.

5th Fifthly in Rules of process and the Practice of the Courts. We beg leave to suggest, that it may be expedient to order the new Chief Justice,' with the assistance of the other Judges, to be appointed and the Attorney General' of Quebec to consider, and prepare a suitable Plan adapted to the Jurisdiction of the different Courts, and the convenience of the Suitors. The Forms of proceeding out to be simple easy and as summary and expeditious as may consist with the advancement of right and the protec tion of Innocen e. useful hints may be taken not only from the supreme Courts of Westminster, but from the practice of the Courts in Wales, and from many of the Colonys. Some time will be necessary, before such a plan can be framed and experience alone can perfect it. As soon as they shall have prepared it, the Governor and Council may enact it by an Ordinance and transmit the same in the accustomed manner, to be laid before his Majesty for his Royal approbation. All which is humbly submitted &ca

April 14th 1766

C. YORKE

Wm DE GREY

Endorsed :-Report of the Attorney and Sollicitor General, relative to the Civil Government of the province of Quebec. 13th May 1766.

Read at the Committee and the Board of Trade Order'd to prepare a draught of an additional Instruction thereupon &c.

N° 9.

1 On Feb. 5th, 1766, an official notice from the Secretary of State was sent to Chief Justice Gregory, stating that in consequence of his conduct His Majesty had no further occasion for his services and that Mr. Wm. Hey was appointed to succeed him. On the 17th of the same month, an official notice was sent to the Governor of Quebec that Hey had been appointed to succeed Gregory as Chief Justice, and directing that he should be invested with the office. See Q3, pp. 1 & 2. For Hey's Commission as Chief Justice, see p. 190.

2 On March 6th, official notice from the Secretary of State was sent to Geo. Suckling that there being no further occasion for his services as Attorney General, Mr. Francis Maseres is appointed to succeed him. On March 18th official notice was also sent to the Governor of Quebec, of the appointment of Maseres in the place of Suckling. See Q3, pp. 3 & 4.

Of Gregory and Suckling Murray reported, that "our chief Judge and Attorney General are both entirely ignorant of the Language of the Natives, are needy in their Circumstances and tho' perhaps good Lawyers and Men of integrity, are ignorant of the World, consequently readier to Puzzle and create Difficultys then remove them." Q 2, p. 378.

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