6-7 EDWARD VII., A. 1907

On the First January, the return of the Magistrates and principal Merchants of Three Rivers respecting regulations of Trade and Police.

On the 6th January the Merchants of Quebec delivered their opinions and representations on a variety of objects of Commercial & Political regulation; to which they have annexed the Copy of a Petition to His Majesty Transmitted to the Right Honorable Lord Sydney in the Fall of 1785. And on the 27th January the Magistrates and Merchants of Montreal delivered their opinions on a variety of similar and other objects, to which they have annexed a Petition to His Majesty tran-mitted Fall 1785—

In these they have deeply and accurately treated, an i Judiciously reasoned, on the actual Situation & various Interests of the Province. We should therefore be wanting to them, and to Your Excellency, if we did not annex and recommend their representations to Your Lordship's most serious consideration and reflection.1

We proceed to submit our own opinions, as far as we have been able hitherto to form any-2

REPORT OF THE MERCHANTS OF QUEBEC BY THEIR COMMITTEE TO THE HONORABLE COMMITTEE OF COUNCIL ON COMMERCIAL AFFAIRS."

Article 10th Recovery of Debts on the Principles of the English Commercial "Laws, speedy processes, and Additional Laws for the Recovery of Small Debts in the "Country."

Observation-The Kings Proclamation of October 1763 promised the future Settlers in this Province the Benefit of the Laws of England:-Those Laws were accordingly introduced by an Ordinance of the Governor and Council in September 1764. but unfortunately abrogated in all civil causes by the Act of the 14th George: 3d Chap. 83. which statute instead of remedying temporary abuses, introduced great Evils, particularly to the Trading Interest of the Nation. The Merchants in England and those of this Province have severely felt the Effects and disposition of Laws to which they were utter Strangers, the principles whereof are anticommercial altogether.

The Custom of Canada is a system so imperfect and defective that the decisions in the Courts have been arbitrary and destitute of uniformity; The Court of Montreal differs in its practice as well as decrees from that of Quebec, both Courts agree in not Confining themselves to Rules of Law, but occasionally decide on the Equity of the case contrary to the letter of the Law. Thus the Custom of Canada, the general laws of France, The Roman Code, and in some Commercial points the Laws of England have been resorted to; but the most dangerous of all systems is that of the decisions in Equity of Courts, strictly constituted as Courts of Law, without the ordinary Rules, Principles and Maxims of Courts of Equity to govern them.

This Versatility in the decrees of the Courts, alone calls for a soiid system of Laws: and surely no better can be resorted to than the Laws of England to govern the property of British Subjects.

The Imports and Exports of the province being upwards of Half a Million a year and from the nature of the property liable to be more affected by the Laws of the Country, and the practice of the Courts than any other. We therefore recommend a re-introduction of the Common and Statute Laws of England as the general Rule for the decision of all matters of Controversy relative to personal property and civil Rights in all personal Actions grounded upon Debts, Promises, Contracts and Agreements, whether of a Mercantile or other Nature and also concerning wrongs proper to be compensated in Damages with an exception to the Statutes regarding Bankrupts and other local laws hereafter to be explained, as inapplicable to the situation and Circumstances of the British Colonies in America in general, or this in particular—

1 These papers are referred to in the index above, where the page references are given.

2 As the committee deal almost entirely with economic questions, this section is omitted.

3 See Q 27-1, p. 260. Articles 1 to 9 (pp. 260-289) are omitted as dealing with commercial and si:nilar

SESSIONAL PAPER No. 18

With an exception also to all Real actions or Controversies respecting the titles of Land, and the Tenure, Descent, Alienation, incumbrances and Settlements of Real Estates and the distribution of the personal property of persons dying intestate, in all which His Majesty's new Subjects are most interested for the Decision whereof, except in certain cases hereafter to be mentioned, Resort should be had to the Laws and Customs of Canada, but that Juries should be granted in all Courts having original Jurisdiction, if demanded by either party, in all and personal Actions whatever.

There must exist some Capital Defects in the Constitution or Practice of all the Courts of Law, on Account of the great delay and Procrastination in the Decision of Causes, which occasions many unnecessary appearances and attendances and creates ruinous expences to the parties.

It is found by experience that the frequency of Holding Courts tends to keep up a Spirit of Litigation among the People, without procuring the Effect intended, a speedy administration of Justice; We are therefore of opinion that stated terms, not more than Six, nor less than four in the year, are more eligible than these Continual Courts, and that the Court of Kings bench should be restored to its former Jurisdiction and powers in civil causes.

To grant to Justices of the Peace in the country the powers they heretofore possessed' in determining matters of property to a small amount under the Ordinance of the 17th September 1764 and thereby to prevent the great expences of distant Suitors to procure Justice, to rectify the rules of practice, and to reduce the Fees and Expences of Litigation in all the Courts, suited to the Abilities of the People, we humbly apprehend would be productive of great good to the province,

It would be proper to divide the Province into more Districts, or rather Counties, erecting a Jurisdiction for Three Rivers according to its ancient Boundaries, from St. Anne to Berthier on the North, and from St. Pierre to Yamaska on the south side of the river Saint Lawrence Inferior Jurisdictions should be granted to Cataraqui and to Chaleur Bay3 as Counties, which would give this mutilated Province a respectable appearance, and forward its Settlement, a measure we think, dictated by good Policy.

Article 11th "The present Establishment for Appeals in Commercial Causes—” Observations-The Defects in the Practice in the Inferior Courts as pointed out in the observation in the last Article, have made their way into the Court of Appeals,* which for these eight years last past has laboured under a great Disadvantage, namely, that of not having one Gentleman bred to the Science of the Law presiding or sitting in that Court in order to explain the Law, and mark out the Errors in the proceedings any, to the other Members. Indeed it is much to be lamented that there do not preside in all the Courts regularly bred professional Men, capable of conducting the Business with propriety and Dispatch, to the want whereof, we in some measure' attribute the great delays and prolixitys of the proceedings in the decisions of causes, without any imputation on the Judges.

if

The great number and fluctuation of the Members of this Court must also of necessity embarrass Decisions and create Delays. If this Court was in its Constitution assimilated to that of others in His Majesty's Colonies, we humbly conceive that the Alteration would be beneficial to the Subject.

Article 12th. The Establishment of a Court of Chancery

Observation-A Court vested with Constitutional powers and Established under wise Rules and Regulations to determine Causes in Equity by an easy process, avoiding as much as possible dilatory pleas, with convenient dispatch and very moderate fees and expences will tend to grant relief to those who actually suffer, or think they do so, under the rigour of legal Decisions in particular cases, A Court thus Constituted, in which one or more able professional men shall have a Seat, is a very desirable Establishment, 1 Before the introduction of the Ordinance of 1770 (see p. 280) which abrogated the powers previously exercised under the Ordinance of 1764, (see p. 149).

2 Afterwards Kingston, the centre of the western settlements of the Loyalists.

3 Afterwards known as the District of Gaspé.

The Court of Appeal, like the Executive Council, consisted of any five or more of the members of the Legislative Council.

6-7 EDWARD VII., A. 1907

and what this Province has been deprived of, and many to their great concern have felt the Want of, since the year 1775—1

Article 13th "On a Registry of all Deeds."

Observations---The Frauds committed by Debtors in Mortgaging their Estates for much more than their value, for want of a Public register Office" are too sensibly felt by Almost every Merchant in the Province-It would be a very salutary measure to record All Incumbrances on real Estates in Order to give them validity and thereby prevent such frauds-And the great objection thereto that it would expose the secrets and situations of Families without reason, may be obviated by enacting that no person shall be entitled to information regarding the Incumbrances of an Estate without, making Oath that he is interested therein, and that the Register Keeper shall give the necessary Extract and not allow the books to be examined.

But as it has been discontinued so long, and the Justice of such an expost facto Law may be questioned by some, and strongly opposed by others, may we not take the medium between the two extremes and recommend that in Case a Law to register past mortgages and Incumbrances should be impracticable That at any rate an Ordinance be enacted the next Sessions of the Legislative Council for the due registering of a Memorial of all Deeds of Sale, Mortgages, Obligations, Marriage Contracts, Donations, Dowers, or any other Deeds, affecting Real Estates, that shall be passed, within a short limited time, and for the future, which Memorial should specify the heads of the necessary Clauses in a consise manner with a reference to the Originals to have recourse to in case of need, to be furnished by the Notary and recorded by the Party in the Public Register's Office in Quebec within thirty days after such deed shall be passed, together with such other regulations as shall be necessary to ordain relative thereto ?

It might be proper to declare in the said Law, that all leases of Houses or Lands or a Memorial thereof, recorded in the Public Registers shall be binding on the Lesser, and bind the said Leased premises, according to the Covenants, notwithstanding the claim or Right of dispossessing or ousting such Lessee by virtue of the Coutume called Droit de Bourgeois de Paris or by any other Law or Custom whatever

That all Deeds, obligations, Mortgages, and Agreements executed before one or two Witnesses shall be binding on the parties and being recorded of equal validity as though the same had been passed and executed before a Notary, any Law or Usage to the contrary Notwithstanding

Article 14th "On a Bankrupt Law"

Observation Public Credit and punctuality in dealings are not sufficiently established, nor is this Province yet ripe enough for the introduction of the Bankrupt Laws of England in their full extent, Yet we are of opinion that a Law is necessary to ascer tain the Criterion of a State of Bankruptcy and to compel the insolvent Debtor in that situation to a surrender of his Books, papers, & property upon Oath for the benefit of all his Creditors, in which Law the right of the wives of all persons concerned in Trade or Commerce, to the real or personal Estate of such Bankrupt, should be ascertained. A distinction should be made in the treatment of a fraudulent and unfortunate Bankrupt, the former should be punished exemplarily yet not cruelly, lest the End be defeated, the latter on a full proof of his Losses and Misfortunes and a faithful surrender of his Effects, after a reasonable time wherein he shall have used his utmost diligence towards the Settlement of his Affairs, should be, with consent of a Majority of his Creditors in number and value entitled to a Discharge.

Article 15th "The Tenure on which the Crown Lands are hereafter to be granted, "it being an object connected with Commerce---"

Observation-In order to encourage Effectually the Settlement of the ungranted Crown Lands behind the Canadian Seignories and other parts of this extensive province by American Loyalists and other Emigrants-It would be highly necessary, we

1 The Quebec Act came into force May 1st, 1775.

2 Under the French system, mortgages or hypotheques were executed by notaries in whose offices alone records of these were kept; hence it was practically impossible for any one purchasing real estate or giving credit on the security of it to have any certain knowledge of how many previous obligations were registered against the property. This remained for many years one of the chief grievances of the mercantile element in the Province of Quebec.

SESSIONAL PAPER No. 18

conceive, to make out those Grants in Townships and in free and Common Soccage similar to the Concessions in the province of Nova-Scotia, & New Brunswick, and those heretofore granted in the Royal Governments, now neighbouring States.

This is the only Tenure to which English Subjects will be reconciled, and we are firmly of opinion that it will induce a very large number of persons to resort hither to the Improvement of Agriculture, the Increase of Population, and Extension of Trade. The ancient Feudal System of holding Lands in Fief et Seignueurie as well as en Roture in quality of Vassals, is inimical to a free Commerce, and together with the Constitution of the Government, has greatly tended to prevent the Settlement of Lands and improvement of the Province hitherto, and will still have the same evil tendency until the lands to be granted are actually conceded, or declared to be intended to be so, on a more liberal.tenure, for not only the desires but even the prejudices of the People ought to be considered. Nor can this proposed mode of granting new Lands operate any evil with respect to the ancient Inhabitants of the Country now holding under the feudal system for we see different tenures of Lands in many of His Majesty's Dominions without producing any bad Effects.

Measures like these, we are Confident, will soon give this Province the form and figure of a British Colony, bring forth its resources, and raise it into Consequence. Article 16. "That a Standard should be fixed for Weights and Measures through"out the Province."

Observation-To regulate the Weights and Measures on a permanent Basis throughout this Province would tend to the facility of Commerce and the prevention of Frauds. Great abuses exist at this time, scarce two weights or two Measures are found exactly alike—It is not the use of French measures for grain & and English Wheight for Flour and the like that creates difficulties, the Custom has been long understood, and well established in those particulars, but it is the irregularity thereof that requires amendiment.

The proper Officer should procure and keep Stamped Weights and Measures for a Standard, the measure corresponding exactly with the French Minot or demi Minot, the only measure known here for grain, salt &―The measure for Linens and Woolens should be the English Yard, or Ell of five quarters of a yard. The Measure for Timber the English Foot of twelve Inches.

The measure for Wine and Spirits should be the English Wine Gallon and that for Beer should be the English beer Gallon.

The Weights used in Towns and Public Markets, and in Shops and Ware Houses should be the English Avoirdupois weight. The Quintal or Hundred weight to be One hundred and twelve pounds of that weight. Such Officer should keep all those Measures and weights in his possession for a Standard and have power and be obliged to examine and stamp all weights and measures on being paid a reasonable allowance for his trouble, and a fine sufficient to prevent evil practices, should be levied on all persons using unstamped or deficient weights and measures-Provided nevertherless that any person making his Election to use french weights or the trench Liquid or Timber measure, such should be made in a different form and of different materials from the English, for a plain distinction, and regulated also by the proper Officer to the Standards.

---

Article 20th "Whether or not we should Apply for a Charter incorporating a "select number of Citizens on some good and approved plan, with power to make Bye "Laws, decide civil and Criminal causes under certain restrictions, whether under the "Stile and Title of Recorder, Mayor, Alderman, and Common Council of the City and "County of Quebec and the Precincts and liberties thereof or under any other "Denomination?"

Observation-The wretched state of the Police of the City of Quebec is too obvious to need explanation. The Regulations that are made, however useful and proper are but little attended to, and ill executed; the Magistracy is unconnected, without Head,

6-7 EDWARD VII., A. 1907 and without inferior Officers to put the Laws in force, their Mandates want efficacy and do not enforce subordination in the People. There is, there can be no remedy but a Chief Magistrate with subordinate officers to put the Laws in force and keep up peace and good order in the Towns. - - A Charter to incorporate the City of Quebec for the above and other good purposes would, we humbly apprehend, be attended with Salutary Effects.

Article 21st "And a like Charter for the City of Montreal "

Observation-It appears to us that the City of Montreal being under the like predicament with that of Quebec, would also be much benefited by a Like Charter, of which however they are the proper Judges.

Article 22 "The establishing of Schools and Seminaries for the Education of "Youth, from those funds now unemployed as well in England as in this Province, and "particularly a respectable College in this City, with able Professors, and erecting Free "Schools at convenient distances throughout this extensive Province, for the purpose of "opening and enlarging the human mind, conciliating the affections of all His Majesty's "Subjects, and having a tendency to render this a happy and flourishing Province "Observation-The Education of Youth in this Province, except in the Cities, where indeed the Schools cannot be boasted of, is confined altogether to the Female sex, there are some five or six small indifferent Schools dispersed thro' the Country kept by Nuns called Sisters of the Congregation, for instructing Girls, but not a single one that deserves the name for Educating Boys, hence all the Inhabitants are unhappily ignorant of the use of Letters, and incapable of reading or writing, a situation truly lamentable! We are informed that the Fund in England piously and generously contributed for the propogation of Christian knowledge in foreign parts, is in a great measure now unemployed, from the circumstance of the United States of America having separated themselves from Great Britain. We are also informed that the Society of Jesuits is shortly to be suppressed and dissolved and their property and Estates vested in the Crown. We understand that the Estates granted to the Jesuits were for the purpose of building a College and endowing it and the Revenues arising therefrom to be applied to the Education of Youth, and that before the Conquest of Canada, a very considerable number of Students were constantly educated in that College. Such being the deplorable state of this Country with respect to useful Learning, and such the ample provision made as a remedy to so great a misfortune as a state of Ignorance confessedly is. We have humbly to recommend that Application be made thro' the proper Channel for a participation of the first mentioned fund, and we humbly Trust that His Majesty out of his paternal goodness will be graciously pleased to direct that the Jesuits Estates and the Revenues thereof, may be applied to the Endowment of a College or University in this City with able professors for the Education of the Youth of all British America and for building and maintaining Free Schools with proper Masters for teaching the English Language, and other Branches of Education throughout this extensive Province on an approved liberal plan.

Posterity requires at our hands our Endeavour to procure them so great a Blessing, which we Supplicate both on their behalf and our own

We have avoided making Observations on that important part of the Trade of this Province carried on with the Indians in the interior parts thereof, as the Merchants in Montreal by being particularly engaged therein, are more capable of giving the Honorable Committee information of the needful regulations, and to their report on that and other Subjects we refer.

In general, and upon the whole of the observations which we have humbly offered, may be collected, the utter impossibility of governing this Province as a British Colony

During the session of 1777 an Ordinance was passed, 17 Geo. JII., cap. 15, "To empower the Com missioners of the Peace to regulate the Police of the Towns of Quebec and Montreal for a limited time." The preamble declared it impossible, owing to the advanced state of the session, to form a permanent Police for these towns, hence only very general and indefinite powers were granted. Nevertheless this ordinance was simply renewed, without amendment, every two years, until 1791.

2 Assistance from this fund was soon afterwards extended to Canada for religious purposes.

3 The disposal of the Jesuits' Estates was a matter of much interest and discussion at this time. See note 1, p. 581.