6-7 EDWARD VII., A. 1907 vince, and that the bulk of your Majesty's new Canadian subjects will be very well satisfied with such a code, and this even though it should in a great measure be taken from the laws of England, provided only that a few of the most important of their ancient laws and customs, and that most nearly affect their property and the future situation of their wives and children, be contained in it. On the other hand, the advantages that would arise from this measure of compiling such a code of laws for this province would, as we conceive, be these that follow. In the first place, the English judges, who will, as we presume, always be employed to administer justice in this province, would have a short and plain rule to go by, which they would easily be able to make themselves masters of, and would not be liable to be puzzled and misled by artful French lawyers, partially citing and misrepresenting and misapplying the doctrines and cases contained in the French law books. And in the second place, the English inhabitants in general would have the satisfaction of knowing easily and certainly what the laws of the province were, upon what conditions they purchased lands or houses, what rights of alienating or devising them they thereby acquired, what duties to your Majesty, their lords or their tenants, they were bound to, and in what manner their wives and children would enjoy their possessions after their decease. These would be no inconsiderable advantages resulting from the composition of such a code, even though done in a very imperfect manner. But there is another and greater advantage with which, as we conceive, this measure would be attended, which is the removing from the minds of the Canadians all idea of the excellency of the French laws and government, and of the superiour skill and ability of French lawyers and judges, bred in the parliament of Paris, and consequently of the happiness of having their law-suits decided by them. For we apprehend that, as long as the French laws and customs subsist at large without being reduced into a code, so that the several French law-books, books of reports, and edicts of the French king are the books of authority upon the subject, to which recourse must be had continually in the decision of points of law, so long will the people of this province retain a reverence for those edicts, reports, and other lawbooks, and for the authority of the French king who made the edicts, and for the parliament of Paris that has made the decisions reported in the books of reports, and the other learned French authors who have composed the other treatises on this subject; and this reverence will be accompanied with a continuance of their liking for that government from which these good laws and edicts and law-books proceeded, and under which they might be most ably administered, and consequently with a secret wish to return to that government, that is, to return to their subjection to the French king; whereas, if they continue to enjoy the most important of their ancient laws and customs under a new name, and expressed in a stile and phrase somewhat different from the former, and carrying with it the stamp of your Majesty's authority, the idea of their former sovereign, and of the parliament of Paris, and of the wise lawyers that compose it, would by degrees wear out of their minds, and they would think of nothing upon these occasions but the king of Great Britain and his code, and the great favour he had shewn them in permitting their principal laws and customs to continue, and giving them the express sanction of his royal authority. This we take to be a very capital advantage attending this measure of compiling a code of laws. As to the inconvenience that might arise from the omissions or imperfections of this code (for we readily admit that it would be very imperfect) it SESSIONAL PAPER No. 18 Advantages : must be observed, that they might be continually lessened and remedied by fresh ordinances, from time to time re-enacting those parts of the former laws and customs of this province which appeared to have been forgotten in the code, and which the governour and council thought worthy to be re-established and in the mean time the code itself (imperfect as we suppose it to be) would still be sufficiently exact to determine all the common cases that occur in the ordinary course of human affairs, such as the rules of inheritance in the direct line, the rules of dower, and of the husband's rights arising from the matrimonial contract, the usual rules about quitrents, alienation-fines, and other profits due to your Majesty and to other lords, the usual methods of investiture of lands by performing fealty and homage, and the like, which would be sufficient to prevent the country from falling into general confusion. This code we suppose to contain the whole of the law by which the province is to be governed, criminal as well as civil, to the exclusion of the whole of the English law, as well as the French, except what was contained in the code itself, and the acts of parliament relating to the custom-house duties, and those few other statutes that expressly relate to this colony by name or sufficient words of description since the conquest of it, or which, though made before the conquest of it, yet extend to it by virtue of the general description of all his Majesty's dominions now belonging to the crown of Great Britain, or that shall hereafter belong unto the same. These are the advantages and disadvantages with which, as we conceive, this first method of settling the laws of this province, by composing a code of laws for that purpose, would be attended. The second method of settling the laws of this province, by reviving at and disadvan- once the whole French law, and introducing by an ordinance only a few of the laws of England that are most eminently beneficial to the subject, is evidently the shortest and easiest method that can be taken for this purpose; but it would be attended with the following inconveniencies. tages of the second method. In the first place it would have a tendency to keep up in the minds of the Canadians that respect for the laws of France, and the wisdom of the parliament of Paris, and the excellence of the French government, which has been above described, and which it would be one of the principal advantages resulting from the former measure, of compiling a code of laws, to extinguish. In the second place it would give disgust to the English inhabitants of this province, who are fond of the laws of England and desirous of having the greatest part of them continued, and think they have a right to the enjoyment of them upon two distinct grounds. In the first place, they think that every country that becomes subject to the crown of Great Britain (whether by conquest, exchange, or otherwise) becomes immediately subject to the laws of England, and that the laws by which it was formerly governed become immediately and ipso facto void and of no effect, being superseded by the laws of England without the aid of any act of parliament or royal proclamation for that purpose. In this we presume they are mistaken; since both the express declarations of the law-books, and those of your Majesty's attorney and sollicitor general in their report concerning this province, made in the year 1766,' and the dictates of natural reason inculcate a quite contrary doctrine, to wit, that the laws of the conquered people subsist in their full vigour till the will of the conquerour shall expressly change them. However this opinion, though not well grounded, is pretty general among the English inhabitants of this province. 1 The Report of Yorke and de Grey; see p. 174. 6-7 EDWARD VII., A. 1907 And in the second place, they say, that, supposing that the laws of England were not of course introduced into this province by the very conquest itself and the subjection of the country to the crown of Great Britain, yet that they have been expressly introduced by your Majesty's proclamation of the 7th of October 1763, in the words that have been me itioned in the former part of this report; in which your Majesty assures them, that they may confide in your Majesty's royal protection for the enjoyment of the benefit of the laws of England. Advantages The third method of settling the laws of this province, by making the laws and disadvanof England the general basis of them, and permitting the Canadian customs tages of the third method. to continue with respect only to some particular excepted subjects, and this by a general reference to the French law books in which those customs are contained, without attempting to enumerate and express them anew, would also be a very short and easy one to your Majesty's ministers and servants both in England and in this province; and will be very agreeable and satisfactory to your Majesty's British subjects in this province. Yet it will be attended with the following inconveniencies. Advantages tages of the fourth method. By preserving a considerable part of the French law in the lump, or by a general reference to the French law-books that contain it, it will in some degree keep up in the minds of the Canadians that reverence for the laws and lawyers of Paris, and th it consequential opinion of the happiness of being subject to the French government (as being that under which those laws may be most ably administered) which all persons that are zealously attached to your Majesty's government would naturally wish to see extinguished. But this objection will take place in a much less degree against this method, than against the last-mentioned, or second method, by which almost the whole body of the French laws would be revived. Further, if this third method of settling the laws is pursued, some of the Canadians will probably make the two following objections to it. They will say, in the first place, that the whole body of their laws ought to have been left intire, as there is a strong and well contrived connexion between all its parts, which makes it dangerous and detrimental to the welfare of the province to alter any of it. And, second'y, they will say, that, if any of the laws of England must be introduced here, they ought not to be introduced by general words, but by special ordinances, enumerating them, and setting them forth at full length, and in the French language, so that the Canadians may know and observe them. But these are objections which we believe will be made only by a few persons, and not by the generality of your Majesty's Canadian subjects. The fourth method of settling the laws of this province, by making the and disadvan law of England become the general law of it, with an exception of some particular subjects, or heads of law; and concerning those subjects to revive the ancient customs of the country by an ordinance or proclamation that should particularly set them forth and describe them in all the extent in which your Majesty should think fit to let them continue, without any reference to the law-books in which they were formerly contained, would be preferable to the third method in this respect, that by enumerating and describing, or reciting particularly, the several French laws and customs that were intended to be continued, it would cut off all connection, in the minds of the Canadians, with the French laws, lawyers, and judges, and the government under which they were maintained. The parliament of Paris, and the custom of Faris, and the French king's edicts would be no longer heard of, as being no longer of any authority; but the laws that were permitted to subsist must be cited in the words made use of by your Majesty to express them in the ordinance or proclamation which permitted their continuance. This would be a considerable advantage which this fourth SESSIONAL PAPER No. 18 Conclusion. method of settling the laws of this province would have over the third method; but it would be certainly somewhat more troublesome to your Majesty's ministers than that third method, and it would likewise be liable to many imperfections from the inaccurate manner in which the French laws and customs that were intended to be continued would probably be set forth; and it would be further liable to the two latter objections which might be made to the third measure, to wit, that it would give but an imperfect degree of satisfaction to some of the Canadians, by leaving them only a part of their ancient laws and customs, and that it would further cause them to complain of the general manner of introducing the laws of England without informing them exactly and particularly what those laws were, that they might know how to obey them. But these are objections which, as we before observed, would probably be made by a few persons only, and not by the generality of your Majesty's new subjects. Thus we have set forth to your Majesty at considerable length (but not greater, we hope, than the importance of the subject required) the different methods by which your Majesty's gracious intention of settling the laws of this province upon a solid and permanent foundation for the time to come, and of leaving to your Majesty's new Canadian subjects the enjoyment of some of their ancient laws and customs that are most necessary to their tranquillity and satisfaction, may be carried into execution, together with the several advantages and disadvantages with which we apprehend that each of them will be attended. To weigh these advantages and disadvantages against each other, and draw a final balance in favour of one of these methods in preference to the rest, or to find a new method preferable to them all, is a task to which we find ourselves unequal, and which we apprehend can be successfully performed only by the wisdom of your Majesty's counsels. By residing in the province we may have been able perhaps, by our observation of the state of things here, to furnish your Majesty with necessary information and materials for forming a decisive judgement upon. the subject; and that, in obedience to your Majesty's commands, we have endeavoured to do faithfully and fully, and to the best of our abilties, in this report. That our endeavours may be acceptable to your Majesty, and may be esteemed rather according to the zeal and integrity by which they have been directed, than according to the degree in which they may be found to answer the high purposes to which they were intended to be subservient, is the earnest wish of, Your Majesty's Most loyal and devoted SUBJECTS AND SERVANTS. N.B. The foregoing draught of a report, which was prepared by Francis Maseres, Esquire, his Majesty's attorney general of the province of Quebec, by order of Guy Carleton, Esquire, the governour of the said province, was delivered in to the said governour on the 27th day of February 1769, but had not the good fortune to be approved by his excellency. Another report was thereupon drawn up by other hands agreeable to the governour's sentiments, in which his excellency has omitted the consideration of all the public acts and instruments whereby the English law has been introduced, or attempted to be introduced, into that province, together with some other matters contained in the foregoing report; and instead of mentioning several different methods of settling the laws of that province for the future, with the several advantages and disadvantages that would probably attend each of the proposed methods, and leaving it wholly to his Majesty's wisdom to chuse one of the methods in preference to the others, as is done in the foregoing report, his excellency has thought fit to mention only one method of settling the laws of the province, which 1 Up to the present, this Report has not been discovered among the State Papers. 18-3-17 6-7 EDWARD VII., A. 1907 he strongly recommends to his Majesty, as the only way of doing justice and giving satisfaction to the Canadians, which is, to continue the laws of England with respect to criminal matters, but to revive the whole body of the French laws that were in use there before the conquest with respect to civil matters. The chief justice, William Hey, Esquire, and attorney general of the province, not thinking it either necessary or expedient to revive the whole body of the French laws in civil matters, but only those parts of them (which indeed are very considerable) which related to the tenure, alienation, dower, and inheritance of landed property, and the distribution of the effects of persons who die intestate, delivered in to the governour two additional papers, or lesser reports, containing their reasons for not wholly agreeing to the report made by his excellency. And these three reports were delivered to Maurice Morgan, Esquire, about the 12th of September 1769, to be by him carried to England, and delivered to his Majesty's secretary of state for America. The additional paper, or lesser report, of the attorney general was intitled his opinion concerning the governour's report, and was as follows. 1 Objections to the proposal of reviving the whole body of the French laws relating to ATTORNEY GENERAL MASERES' CRITICISM OF GOVERNOR The Opinion of the Attorney General of the Province of Quebec concerning the Report made by his Excellency Brigadier-General Carleton, the Governour in Chief of the said Province, to his Majesty in Council, concerning The State of the Laws and the Administration of Justice in the said Province; with The Reasons of his Dissent from some of the Matters contained in the said Report. Your Majesty's attorney general of this province approves that part of the foregoing report which gives an account of the constitution of the government of this province during it's subjection to the French king, and believes the said account to be true in most particulars; but he cannot assent to that part of the said report which suggests to your Majesty the civil matters. expediency of reviving the whole of the French laws in civil matters, for the following reasons. Inconsistency of such a measure with his Majesty's former plan of conduct with respect to the province of Quebec. In the first place, he thinks it will be a deviation from that plan of conduct which your Majesty has hitherto thought fit to pursue with respect to this province ever since the conquest of it by your Majesty's arms in 1760, which he conceives to have been, to endeavour to introduce the English laws and the English manner of government into it, and thereby to assimilate and associate this province to your Majesty's other colonies in North America, and not to keep it distinct and separate from them in religion, laws, and manners, to all future generations. He conceives that if this latter system had been that which your Majesty had adopted, your Majesty would have given orders to your general, Sir Jeffery Amherst, to whom 1 The three reports delivered to Morgan were those of Governor Carleton, Chief Justice Hey and Attorney General Maseres. In a communication from John Pownall, Under Secretary of State for the Colonies, to the Clerk of the Council in Waiting, he states that, by Lord Hillsborough's orders, he has transmitted to the Council certain papers sent to His Lordship by the Governor of Quebec, 18th September 1769, pursuant to the Order in Council of Aug. 28th, 1767. These papers were:- 66 Report upon the State of the Laws and Courts of Judicature in the Province of Quebec." Attorney General Maseres' Opinion concerning said Report." Hillsborough, writing to Carleton on Jan. 18th 1770, reports that Morgan has arrived and delivered the papers which will pave the way for a speedy decision on the state of Quebec. The reports however are not found in connection with any of these despatches. That of Maseres, which follows, is given by himself in his volume of "Commissions" &c. 2 Maseres, "A Collection of several Commissions and other Public Instruments, &c." p. 50. |