SESSIONAL PAPER No. 18 Il auroit été a Souhaiter qu'on eut pensé Lors de la redaction des ordonnances à promulger les Loix concernants les Tutelles et Curatelles, on oublia des objets si interressants. Les Juges des plaidoyers Communs furent pourvûs de Commissions du Gouverneur pour accorder des Lettres d'administration, et sans penser que ces Commissions n'etoient pas necessaires, ils se qualifioient de Juges de la Cour des Prerogatives et proceder aux Elections de Tuteurs et Curateurs suivant la forme et les anciens usages. cependant ils accorderent des Lettres d'administration aux anciens Sujets suivans la forme Angloise. les Juges des plaidoyers Communs prevoyant le danger et les difficultés d'avoir deux formes de proceder dans une même Province prirent la resolution il y a 4 ou 5 ans de presenter au Conseil un projet de formes de proceder pour les Actes de Tutelles et Curatelles il en resultoit plusieurs avantages. 1° L'instruction des Anciens Sujets. 2o Une forme permanente, d'autant plus necessaire que les françois n'ont point de Loix Ecrittes pour ces sortes d'actes, l'usage Constament pratiqué en Canada depuis l'Etablissement du pais tient lieu de Loix mais la pluspart des Membres du Conseil soutinrent qu'il etoit inutile de faire une Loy à cet egard, vous avez dirent-ils des usages qui tiennent lieu de Loy Continués les, il fut faite des reflections sur ce qu'on avoit accordé des Lettres d'Administration suivant la forme Angloise; depuis ce Tems les Juges ont continué a donner des Lettres de Tutelles et Curatelles selon la forme françoise, reflechissants qu'ils seroit dangereux d'avoir deux formes de procedée dans une meme Province et L'embarras qu'il y auroit lorsqu'un des conjoints par marriage seroit né en Angleterre et L'autre en Canada, distinction epineuse et sujets à mille difficultés De L'insinuation et Enregistrement des Donations Entrevifs et des donations faites entre conjoints par Contrat de Marriage. par la coûtume de ce pais Toutes donations Entrevifs doit etre Enregistrée dans les 4 mois à peine de nullité, avant la Conquete, L'Enregistrement se faisoit dans les Registres des Greffes des differentes Jurisdictions et depuis Jusqu'a présent cet usage a ete continué. Il est de la plus grande necessité de laisser aux Juges de la Cour des Plaidoyers Communs, l'administration de ces sortes d'objets dont ils connoissent la forme, sans cela il naitra une multitude de procés qu'on doit soigneusement eviter. I certify the above from Page [i.e. 186] to this page, inclusively to be a true Copy of the Originals of Record in my Office. A PAPER, BY MR. JUDGE PANET, REFERRED TO BY NOTE 9. Concerning Examinations on Facts and Evidence. At the time of the French Rule there was no Court of Chancery in Canada, but The superior Council of Quebec had the power of giving Letters of Emancipation and of Restitution against Acts which could be repealed, these Letters were addressed to the Judges of the inferior Jurisdiction, who gave Judgment on their Ratification, or their rejection. Appeal could be made from the Judgments of these Courts to the Council. The people did not suffer much, or rather they did not suffer at all from this lack of a Court of Chancery, seeing that the litigants had the right to insist on being examined concerning facts and evidence in virtue of the Ordinance of Louis Fourteenth of the Year 1667, registered at the superior Council of Quebec. These Examinations were very necessary in obscure Cases for discovering the truth; here follows in full the Ordinance of 1667. 18-3-39 Article 1a 6-7 EDWARD VII., A. 1907 We hereby give Permission to all Parties to insist on Examination in any kind of case, on pertinent facts and Evidence relating only to the affair in Question before the Judge where the dispute is pending, and in the case of the absence of the party then before the Judge who is commissioned by him, the whole without retarding the information and Judgment. 2. Summons to answer concerning facts and Evidence shall be issued in Virtue of the Order of the Judge without commission from the record office, even though the person concerned is residing out of the Place where the suit is pending, and without an Order, the Judge and the Recorder have not authority to undertake anything. 3. Examination shall be granted to any one at the house of the party concerned, and not at any other house chosen nor at the house of the procureur, and a Copy of the Order of the Judge and of the facts and Evidence shall be given. 4 If the party concerned does not appear at the Day and Place assigned, or refuses to answer, a summary verbal process shall be issued making mention of the Summons, and of the refusal, and in the Verbal process the facts shall be held as Confessed and proved in all jurisdictions and Courts of Justice, even in our Courts of Parliament, grand Council, Office of Public Accounts, &c. 5. It is our will nevertheless that when the party concerned appears before the Judg. ment of the suit to undergo examination, he shall be called upon to answer to the demand to pay the cost of the examination and of furnishing a copy thereof to the other party, and also to repay the costs of the first verbal process, without the right to repeat them and without delay in the Judgment of the case. 6. The party concerned shall reply in person, and not through a procureur, nor by writing, and in case of illness or of Lawful Hindrance the Judge shall proceed to his house to carry out the examination. 7. The Judge after having administered the Oath shall receive the reply to each fact and Evidence, and in virtue of his office shall have power to ask questions concerning any facts, although he may not have been given a copy thereof. 8. Answers shall be precise and pertinent on each charge, and without any injurious or calumnious Expressions. 9. Chapters, Bodies and Communities shall be held empowered to nominate a Syndic, Attorney or Officer to reply to the facts and Evidence communicated to him, and to this end shall issue a special power in which the replies shall be Explained and affirmed to be true, otherwise the facts shall be held as confessed and proven without prejudice to the examining of Syndics, attorneys and others who have acted by the order of the SESSIONAL PAPER No. 18 Community with respect to the facts which specially concern them so that they may receive from the Judge due consideration. 10 and last. Examinations shall be held at the expense of those who shall have required them, without their having the right to demand any repetition nor to enter them as a Tax,. even in case they are condemned to pay the costs. It is to be wished that this simple Law had been made a part of the forms of procedure, the last Ordinance is silent on this most interesting point. ANOTHER PAPER BY MR. JUDGE PANET, REFERRED TO IN NOTE 9. Concerning Guardianships and Trusteeships. At the time of the French Government, the judges of Quebec, Three Rivers, and Montreal, not only administered justice in all civil Actions, but also took action in the Election of Guardians Surrogate Guardians, and Trustees, relations and friends to the number of seven being assembled. They had no special Commissions for this class of cases. This form of procedure was continued after the Conquest till the Year 1764. At the time in which General Murray introduced the laws of England into the Courts of Justice, this same General granted Surrogate Commissions to Judges Mabane and Fraser. In virtue of this commission the surrogate Judge of Montreal (I am not aware of what was going on at Quebec) gave Letters of administration instead of Acts of Guardianship, according to the English forms, and required administrators to give sureties. The inhabitants were most averse to this giving of sureties, and many of them did not make an Inventory, as they were unable to find Sureties. Those who did find them were obliged to send this Inventory to Quebec, which was the only Registration Office. The costs of Administration were considerable and greatly diminished the small advantage which they derived from it. This new Mode of procedure caused many murmurs and complaints, and in the Year 1767 they came to the ears of his Excellency, General Carleton, who directed the Judges to omit the new form, and return to the Old one,, which was better known and much less Costly. This was the practice until 1775. It would have been desirable that they should have thought at the time of the compilation of the regulations, for the promulgation of Laws concerning Guardianships and Trusteeships, but these interesting points were forgotten. Judges of the Court of Common Pleas were provided with commissions by the Governor for the granting of Letters of administration, and without considering that these Commissions were unnecessary, they qualified themselves as Judges of the Court of Prerogatives, and proceeded to the Election of Guardians and Trustees according to the ancient form and usages, while they granted Letters of administration to ancient Subjects according to the English form. The Judges of the Court of Common Pleas, foreseeing the danger and difficulty of having two forms of procedure in the same Province, 4 or 5 years ago, formed the resolution of presenting to the Council a plan of forms of procedure for Acts concerning Guardianships and Trusteeships. Many advantages resulted from this action. 1st The Information of the Ancient Subjects. 24 A permanent form, all the more necessary because the French have no written Laws for this class of acts. Customs invariably practised in Canada since the Settlement of the country took the place of Laws, but the greater part of the Members of Council maintained that it was useless to frame a Law to this effect; you have, said they, customs which take the place of Laws, Continue them; Objections were raised to the granting of Letters of administration according to the English form; since that Time Judges have continued to give Letters to Guardians and Trustees according to the French form, thinking that it would be dangerous to have two forms of procedure in the same Province, and considering the Confusion there 18-3-391 6-7 EDWARD VII., A. 1907 would be when one of the parties joined in marriage should have been born in England, and the other in Canada, an equivocal difference which would give rise to a thousand difficulties. Concerning the Introduction and Registration of Donations Intervivos and Donations between those joined by Contract of Marriage According to the customs in force in this country before the Conquest all donations Intervivos ought be registered within 4 months, under pain of lapsing, Registration was made in the Registers of the Record Offices of the different Jurisdictions and from that time to the present this custom has been in force. It is extremely necessary to leave the administration of this class of subjects in the hands of the Judges of the Court of Common Pleas, as they are acquainted with the customary forms. Otherwise a multitude of lawsuits would be the result, which ought to be carefully avoided. с REPORT OF THE COMMITTEE OF COUNCIL RELATING TO COMMERCE & POLICE WITH A FEW OTHER PAPERS CONCERNING THOSE SUBJECTS, SCORED UNDER IN THE INDEX WITH RED INK.1 INDEX. Page 237 to 258 The Report of the Committee of Council (612) 259 260 315 323 324 325 326 410 420 429 431 440 441 447 448 451 460 470 Letter from the Committee of Council to the Merchants of Quebec. Report of the Merchants of Quebec by their Committee to the Committee of Council (614) *Petition from His Majesty's new Subjects residing at Quebec, (619) with an English translation of it. (621) Letter from the Committee of Council to the Merchants of Montreal (622) An answer to that Letter. (623) Reply to the Answer. (623) Report of the Merchants of Montreal by their Committee to the Committee of * Address from His Majesty's New Subjects residing at Montreal (628), with an * Letter written by Mr. Joseph Howard a Merchant to the Committee of Merchants at Montreal. Extract of Imports and Exports into the Port of Quebec for the Years 1783. 1784. 1785 & 1786. Copy of a Petition formerly presented to His Majesty, whereof Duplicates were Letter to the Magistrates of Quebec, from the Committee of Council. (630) * Representation by many of His Majesty's new Subjects at Three Rivers to His Ex- Information concerning the Fisheries. Concerning the Navigation and Pilotage of the River St. Lawrence. To His Excellency the Right Honorable Guy Lord Dorchester Captain General and Governor in Chief of the Colonies of Quebec, Nova Scotia and New Brunswick and their Dependencies &c. &c. &c. THE REPORT OF THE COMMITTEE OF COUNCIL ON COMMERCE AND POLICE. May it Please your Lordship. In obedience to your Lordships commands signified in Council on the 6th November last, whereby you was pleased to appoint us, to be a Committee to take into consideration the 1 Canadian Archives, Q. 27-1, p. 235. The index to this Report will indicate the varied and interesting character of the subjects dealt with. Only some of these, however, have a sufficiently direct bearing upon the constitutional issues of the time to be included in this volume. The page numbers in the left hand column refer to the copy in the Canadian Archives, while the numbers, in brackets, which follow the articles, indicate the pages at which those reproduced in whole or in part in this volume will be found. Those papers referred to in the title as underlined with red ink are marked with an asterisk. As indicated in the Minutes of Council (see p. 591), those appointed to be members of this Committee were Messrs. Levesque, Harrison, Collins, Grant and Pownall. 2 See Q 27-1, p. 237. SESSIONAL PAPER No. 18 "External and Internal Commerce and regulation of the Police, having "an Eye to the ancient Laws and usages of the Province, and to report "to your Lordship our considerations thereon, with as much Dispatch 66 as we should find convenient." We now with the utmost diffidence, lay before your Lordship not only Our report, but a Journal of our proceedings in order to obtain the thoughts of others, more experienced than ourselves, on objects of such extensive concern to the Wellfare of the Province, and the happiness of his Majesty's subjects under your Lordships Govern ment At our first meeting as a Committee, on the 13th of November, we perceived the necessity of calling for the assistance of our fellow citizens on the considerations committed; considerations in which the Happiness and greatest Interests of the Country were evidently to be contemplated. We therefore thought it our duty (consistent with the powers communicated to us by your Excellency) to consult the opinions and take the Ideas of the principal Merchants and Magistrates of the Province, rather than solely to hazard opinions of our own To obtain these in the most unbiassed manner, we immediately wrote to the Magistrates-Merchants and Citizens of Quebec, Montreal and Three Rivers. We acquainted them with Your Excellency's recommendations to us, and entreated their sentiments. We also wrote to the Collector and Comptroller of His Majesty's Customs, requesting an Account of the Imports and Exports and of the Shipping employed in the Trade and Commerce of the Province since the Peace. We wrote to Mr. Ja Frost, Master of the Port, Mr. Steel Master of His Majesty's Provincial Vessel the Mercury, Mr. Constant Freeman an experienced Ship Master, Mr. Chenique and Mr. Peter Fraser experienced Pilots, requesting their Information respecting the present state of the Navigation and Pilotage of the River Saint Lawrence, and the Improvements that might be made therein. Your Lordship was pleased to order to be laid before us the Application of Levi Allen Esq on behalf of the state of Vermont for Commercial intercourse with this Province, and through it to Britain and the other Country's in His Majestys Dominion; And at same time, a Letter from the Collector of His Majestys Customs, stating the Revenue Laws which apparently impeded Such Intercourse. We received by Your Lordships command two Letters from Mr. Geo. Wm Howard a Merchant of Jamaica, and one from Mr. Bannatyne a Merchant of St Christophers, on the subject of the Trade from the West Indies to this Province; the importation of Foreign Molasses, and the Suppression of Distilleries: and Your Excellency was also pleased to refer to us the observations of Mr. James Grant a Merchant of this place on the same subject. By Your Excellency's command, we received from Cap" Le Maistre a List of His Majestys Vessels employed on the Lakes Ontario, Erie and Huron; and from Lieut. Governor Hope, a Letter and Representation of Mr. Isaac Todd Merchant in Montreal, respecting the Navigation, and the Transport and carriage of Merchants Goods frʊm, and to, the different ports or posts, on those Lakes. Lieut Governor Cox, and John Collins Esq' have represented to us the state of the Cod Fishery in the Gulph and river St. Lawrence, and pointed out such regulations as seem necessary for carrying it on. We take the Liberty of annexing their Papers, and of entreating Your Excellency's reference to them— On the 4th December we received the return or Report of the Gentlemen to whom we had written respecting the Pilotage and Navigation of the River, which with other Papers, we also annex for Your Excellency's Inspection On the 8th December we received from the Collector and Comptroller a return or abstract of certain Exports, Imports, and Shipping (from 1" May 1783 to 1st December. 1786. On the 27th December, the Magistrates of Quebec presented their sentiments respecting the Amendments which seem requisite in the Police of their District, and other Objects of useful regulation. |