SESSIONAL PAPER No. 18 Powers of the for the District of Surveyor General, or Deputy Surveyor General, or any Deputy of them, or either of them. 3rd And be it also Enacted by the same Authority, that until the Bench First Judge of the Court of Common Pleas for the District of Hesse shall have Three Judges duly appointed to officiate thereon, all the Powers and Authorities of the whole number shall be vested in such Person as shall have a Commission to be the First Judge thereof; any other Law, Act, or Ordinance to the contrary notwithstanding. On Criminal Prosecutions in the new Districts, 4th And on Account of the remoteness of the said New Districts, and for the security of the Subject, and to prevent long Imprisonments, and to lessen the public Charges in Criminal Prosecutions,-Be it further Enacted Execution to by the same Authority, that on all Trials to be had in either of the new be Suspended Districts before Commissioners of Oyer and Terminer or General Gaol Delivery, when the Chief Justice of the Province may happen not to be one, the Execution of the Sentence or Judgment of the Court shall be suspended until the Pleasure of the Governor or Commander in Chief for the Time being shall be signified thereon, by Warrant under his Hand and Seal at Arms. when, &e be transmitted to the Governor. Copies of the 5th And to the End that the Government may have full Information of Proceedings to the Proceedings of the said Courts of Criminal Jurisdiction, Be it also Enacted by the same Authority, That it shall be the Duty of the said Courts, with all convenient Speed, to transmit to the Governor for the Time being, not only copies of the Indictment, Information, or Charge, and of the Plea, and other Proceedings, in every Cause before them had, but of the written and parol Testimony read and given to the Jury, and the Scope and Substance of the Points ruled in Evidence, and of their Charge to the Jury, and Copy of the Verdict, and of every material Transaction in the Cause, together with such Observations as they may think proper to make on every such Cause and Trial, and the whole under the Signatures of the Majority of the Judges before whom every such Trial was had. Proviso, Cases where may be Stayed Exception. Persons convicted of a Capital Of fence in the new Districts Provided always, and be it nevertherless Enacted by the same Authority, That it shall not be necessary to make such Report of the Proceedings, nor to stay the execution of the Sentence or Judgment in any Case where it shall not extend to Life or Limb, nor to any greater Fine, Penalty, or Forfeiture, than the Sum of Twenty five Pounds Sterling, Money of Great Britain. And wherever so great a sum shall be adjudged for a Fine, Forfeiture, or Penalty, in any Court of Sessions of the Peace, to be held in either of the said new Districts, Execution shall in like manner be stayed until such Information is given to the Government, by the Major part of the Justices before whom the Trial was had, or Judgment given, as is above directed to be given by the Courts of Oyer and Terminer, and General Gaol Delivery, except that it shall not be necessary in such Court of Sessions to reduce to Writing all the Testimony that may be given to the Jury on Trials before them had, but that instead thereof it shall suffice to report only the main Scope and Substance thereof, and that the execution in every Case to the Amount aforesaid, given by either of the Courts of Sessions of the Peace of the said New Districts, shall also await the Signification of the Pleasure of the Governor, or Commander in Chief in the manner aforementioned. 6th And be it also Enacted by the same Authority, That until the new Districts aforesaid shall be furnished with safe Gaols and Prisons, and as often as the Majority of the Commissioners of such Courts of Oyer and Terminer, and General Gaol Delivery, sitting therein, shall conceive it to be unsafe to continue within their District any Prisoner convicted before them of a Capital Offence, they may take course for conveying him to such other of His Majesty's Prisons as they may designate, for his being safely 18-3-42 may be con 6-7 EDWARD VII., A. 1907 kept to abide the Judgment of the Law; and the Sheriff and Gaoler, veyed to any Bailiffs, and Officers, to whom any such Traitor or Felon shall have been of His Ma jesty's Prisons. delivered, shall be respectively answerable for the Prisoner, and upon his Escape shall severally be subject to all such Punishments, Pains, Penalties, and Forfeitures, as they would have respectively incurred, had such Prisoner received such Judgment upon a Conviction for the like Offence committed within the Bailiwick for which they serve. 7th And whereas the Detention of Prisoners until the sitting of the Court of King's Bench, or the sitting of Commissioners of Oyer and Terminer, and General Gaol Delivery, hath been very burthensome to the Public, and is likely to be encreased by the Insufficiency of the Gaols in the old Districts, and the total want of them in the new Districts; and it often happens that Persons committed for simple Larcencies are either acquitted, or only found guilty of Petty Larcency: Be it therefore Enacted by the same Authority, That Simple Larcency, where the goods stolen shall not in value exceed Twenty Shillings Sterling Money of Great Britain, shall be deemed and adjudged only Petty Larcency; and whenever any Person shall stand committed to Gaol for no higher Petty Larcen- Offence than a Breach of the Peace, or Petty Larcency, and shall not within cy extended to Forty-eight hours after his Commitment find Bail sufficient, in the Opinion Twenty Shil- of any One Justice of the Peace, for his Appearance at the next Sessions of lings Sterling. the Peace, for the District where the Offence is charged to be committed, it shall be Lawful for any Toree Justices of the Peace (One of whom shall be of the Quorum) to meet and cause the Offender to be convened before them, at some Public and convenient Place, and then and there, or at such other time and place to which they may adjourn to hear the charge and Defence Three Justices with the Evidence for and against the Prisoner, and to determine the same,, of the Peace and upon their conviction of the Guilt of the Prisoner to give Judgment (one being of the Quorum) against him for such Corporal Punishment (not extending to Life or Limb) empowered to as they, or the Major Part of them shall in their Discretion think adequate hear & deter to the De merit of his Offence, and that after the execution thereof the Offender shall be discharged; but if he shall not have been a stated Resident of the Province for Twelve Months preceding his Commitment and shall in Twenty Days after his Discharge be found within the said District, and shall wilfully have remained within the same, it shall be lawful for any one Justice to commit him to Prison, and for Three Justices to proceed against him in manner aforesaid, and to adjudge him to such further Correction (not extending to Life or Limb) as they in their Discretion shall think proper, unless he shall find good and sufficient sureties, in the Opinion of the Justices by whom he shall be tried, to recognize in such sum as they shall appoint for his good Behaviour for seven Years, on giving which he shall be set at Liberty, and the Recognizance be filed with the Clerk of the Peace. mine Breaches of the Peace and Petty Larcency. sist. Gaolers & And all Gaolers, Constables, and Peace Officers, when thereunto rePeace Officers quired, shall be aiding and assisting to the Justices employed in the said to aid and as- Service under the Penalty of Ten Shillings for every Default, to be recovered before any one Justice of the Peace in a Summary way, by Warrant of Distress and sale of the Offender's goods and Chattels, returning the overplus to the Owner, if any there be, after deducting the Penalty and the Costs, one Half of which Penalty shall belong to the Person suing for the same and the other to the Crown, and be forthwith paid by the Officer executing the said Warrant into the Hands of His Majesty's Receiver General. 8th And inasmuch as the Annual Collection of the Trade will require Yearly Circuit Courts to be held in the Northern Parts of the District of Hesse: Terms & for the District of Be it also Enacted by the same Authority, That it shall be lawful for Hesse, how to the Governor or Commander in Chief for the time being, by Proclamation SESSIONAL PAPER No. 18 ed. be ascertain to be issued under the Great seal of this Province, by and with the advice of His Majesty's Council, to ascertain the Terms of such Sessions, and the Cognizance of the Causes there to be tried and adjudged, and the mode of proceeding therein, and whatever shall appear to be requisite for the effectual Administration of Civil Justice at such Circuit Courts, or the perfecting the Business thereof in any other Court, of the said, or any other District; this Act, and any other Law, Usage, or Custom to the contrary notwithstanding. Jurisdiction of the Civil Courts in the ing to Domicile. 9th And be it further Enacted by the same Authority, That in Civil Actions to be instituted in the District of Hesse, it shall not be a Ground of Exception of any kind whatsoever to oust the Courts of the said District Hesse, relat of Jurisdiction, that the Cause of Action arose out of the same, or that by Reason of the Domicile of the Defendant it ought to be brought elsewhere, but that all the Proceedings in Causes there instituted, and the Judgment and Execution thereon, shall be deemed and adjudged to have the like Force, Effect, and Consequences, in all.Respects whatsoever, as if the Cause of Action and Ground of Defence had arisen, and all Transactions relating to the same had happened within the said District of Hesse. Particular Limitation 10th And forasmuch as, for want of a regular Magistracy, and an Establishment for the convenient Dispensation of Justice in the District of Hesse, Attempts may be made to elude the Payment of just Debts, under Pretext of the Laws of Prescription or Limitation, which presuppose a state of general Tranquillity, and the easy and free Course of Justice: Be it also Enacted by the same Authority, That every such Plea or of Actions in Defence under the Laws of Prescription or Limitation, be adjudged to be the District of null and void in every cause to be instituted in the Courts of the said Hesse. District of Hesse, except in Actions and Cases accruing posterior to the first day of January which will be in the year of Our Lord One Thousand, seven hundred and ninety : Proviso. Proofs admissable in the Five New Districts. Sale of Moveables in the Provided always, And be it Enacted, That nothing herein contained shall be construed to revive a Demand for cause of Action arisen prior to the First Day of January, in the Year of Our Lord One Thousand seven hundred and Eighty-Six. 11th And whereas the Western Districts of Luneburg, Mecklenburg, Nassau, and Hesse are, and also the District of Gaspé probably will be, chiefly Inhabited by Persons born within the Ancient Dominions of the Crown of Great Britain. Be it further Enacted by the same Authority, That in Civil Causes hereafter to be tried or Adjudged and determined in either of the said New Districts, where the Title to the Freehold shall not come into Question, no Proof offered in such Cause shall be deemed to be inadmissible, that would be sufficient to sustain the Point for which the same is offered, either by the ancient or present Laws of the Province, or by the Laws of England. 12th Where Moveables shall be taken in Execution by the Sheriff of the new District District of Hesse, Luneburg, Mecklenburg, or Nassau, or Gaspé, he shall cause such seizure to be published at the Church Door of the Parish immediately after Divine Service, on the First Sunday succeeding such Seizure; or if there be no Church in the Township or Parish then such seizure shall be notified by Publication or Advertisement in Writing affixed to the Door of the Court House of the District, and also at the nearest Grist Mill, as soon as may be after such Seizure; and the said Notification shall design the Day and Place where and when he means to proceed to the Sale thereof, not protracting such Sale beyound Fourteen Days from the Date of such Publication: And when Lands and Tenements shall be taken in Execution by the Sheriff of either of the said Districts, he shall advertize the Sale by Three several Publications in Writing, to be fixed at the Door of the Court House of the District, and in some ostensible Place in the Office of Clerk of Sale of Real Estates. In Personal Domicile of ant. Executions to District to the other. 6-7 EDWARD VII., A. 1907 the Court whence the Execution issued, and at the nearest Grist Mill, such Notice to be renewed the First Monday of Three Successive Months preceding the Sale, which shall not take Place in less than Four Months after the Date of the First Publication. 13th Be it further Enacted by the same authority, That in all Personal Actions to be instituted in any of Districts in this Province, it shall not be a legal Exception that the Cause of Action arose out of such District, or that by reason of the Domicile of the Defendant it ought to be brought elsewhere; but that all the Proceedings in such Actions, and the Judg. ments and Executions thereon, shall be deemed and adjudged to have the like Force and Effect in every Respect as if the Cause of Action and Ground of Defence had arisen, and all Transactions relating thereto had happened, in the District where the Action is instituted, any Law, Usage, or Custom to the Contrary notwithstanding. 14th And be it enacted by the same Authority, that the Course and issue from one Power given by the said Act, intituled, "An Ordinance to regulate the Proceedings in the Courts of Civil Judicature, and to establish Trials by "Juries in Actions of a Commercial Nature and Personal Wrongs to be 'compensated in Damages," for perfecting the Execution of a Judgment out of the District where the same was rendered, shall be pursued in every old or new District of the Province, Appeals from the new Districts. 15th And that Parties adjudged in the said New Districts may not be deprived of their Right and Benefit of Appeal: Be it further Enacted by the same Authority, That the giving security as heretofore used on the bringing of a Writ of Appeal, shall as effectually suspend Execution in Causes of the said Districts, as in the old Districts on the actual Production of a Writ of Appeal, such Appellant in all other Respects conforming to the Law of Appeals as it now stands, and suing out, within Twenty Days after Judgment, an Office Copy of the Proceedings in the Cause adjudged; which to prevent Delays, shall be as effectual before the Appellate Jurisdiction as if transmitted according to the present Law and Usage in Appeals from the Common Pleas Courts of the old Districts. GRENVILLE TO DORCHESTER.1 (Private and Secret.) DORCHESTER WHITEHALL 20th Oct 1789. The Right Honble Lord Dorchester, & & &c. MY LORD, The public dispatches of this date will inform your Lordship of the intention of His Majesty's Servants, with respect to the plan to be proposed in Parliament for altering the present Constitution of Canada.—I feel that it is due to your Lordship, that I should inform you of the grounds on which this resolution has been adopted, in a more particular manner than the nature of a public dispatch appears to admit; and, for that 1 Canadian Archives, Q 42 p. 92. William Wyndham Grenville, a cousin and favourite of Pitt, the Prime Minister, resigned the position of Speaker of the House of Commons to become Secretary of State for the Home Department, in June 1789, in succession to Lord Sydney. He was raised to the Peerage as Lord Greuville in 1790. In 1806 in coalition with Fox he became head of the famous "Ministry of all the Talents." 2 See the despatch which follows this. SESSIONAL PAPER No. 18 purpose, I inclose to your Lordship in confidence, a paper containing the heads of those suggestions, on which the present measures are founded.' I am persuaded that it is a point of true Policy to make these Concessions at a time when they may be received as matter of favour, and when it is in Our own power to regulate and direct the manner of applying them, rather than to wait 'till they shall be extorted from us by a necessity which shall neither leave us any discretion in the form, nor any merit in the substance of what We give. I am ignorant how far your Lordship's Opinion coincides with the ideas stated in the inclosed paper. One point I observe, and have alluded to in my public Letter, on which you have stated Objections; but I think they are such as apply to the present state of the Province, rather than to what it would be under a different form of Government. With regard to the remainder, it would certainly give me great satisfaction if I could find the opinions which I entertain confirmed by your Lordship's experience and knowledge of the Subject. But, in all events, I have not the smallest doubt of your Lordship's wish to co-operate in carrying into execution, in the most advantageous manner, that Plan which Parliament shall ultimately adopt, on a subject which has been so long before them; and I trust you will see the importance in this point of view, of your delaying your visit to this Country, 'till after the new Government shall have been put in motion. There is one subject adverted to in the paper which I now enclose, of which no mention is made, either in the Bill now transmitted to your Lordship, or in the dispatch which accompanies it. What I mean is, the suggestion relative to the possibility of making such reservations of Land adjacent to all future Grants, as may secure to the Crown a certain and improving Revenue.—A Measure, which, if it had been adopted when the Old Colonies were first settled, would have retained them to this hour in obedience and Loyalty. I confess that I am very particularly anxious to find myself sufficiently informed to be able to recommend to His Majesty, the adoption of some system of this nature, in His remaining Colonies, and I should therefore feel myself obliged to your Lordship, if you would consider it with attention, and state to me your Sentiments, both as to the general principle, and as to the best mode of carrying it into effect, in the different Provinces under the King's Government in North America. Your Lordship will perceive, by the different accounts, which you will receive from Europe, that the state of France is such, as gives Us little to fear from that quarter in the present moment. The opportunity is therefore most favourable for the adoption of such measures as may tend to consolidate Our strength, and increase our resources, so as to enable Ourselves to meet any efforts that the most favorable event of the present troubles can ever enable her to make. It having been determined to bring under the consideration of Parliament early in the next Session the propriety of making farther provision for the good government of the Province of Quebec, I enclose to your Lordship the draught of a Bill prepared for this purpose.* 1 This paper does not accompany the despatch. 2 Referring to the proposed Crown Reserves. 3 Canadian Archives, Q 42, p. 96. This is the public despatch referred to in the foregoing letter. 4 See below, p. 667. |