6-7 EDWARD VII., A. 1907 only guide and determine the course and devolution of that property after their deaths among persons that were then unborn. This, therefore, he conceives to be a matter upon which the authority of a legislator may properly be exercised. And he further apprehends, that in some time hence a change of the laws relating to these subjects, and especially of those relating to dower and the inheritance of land, would be highly beneficial to this province, the present excessive subdivision of the lands, by repeated partitions of them amongst numerous families, being productive of considerable inconveniencies. But this, he apprehends, need not be done at present; and he conceives, that, if ever it should be thought adviseable to do it, it ought to be done by a full and express declaration beforehand of the time at which the proposed changes should take place, with a power given to such persons as disliked them to prevent their taking place in their respective families by express provisions and agreements to the contrary, and should be accompanied with such temperaments and modifications as should make the adopting them be in a manner the voluntary act of the persons who were affected by them. But for the present he conceives it might be better to postpone those important changes, and to revive the ancient laws of this province concerning inheritance and dower, and the distribution of intestates estates, as well as those relating to the tenures of land and the power and manner of aliening and mortgaging and otherwise incumbring it. And this one ordinance, reviving the said ancient laws relating to landed property and the distribution of the effects of persons who die intestate, would, as he conceives, be sufficient to preserve the tranquillity of the province, and to give satisfaction to the bulk of the Canadians at least, he apprehends it would be enough to begin with: and if, upon trial, it should be found necessary to revive some other of the French laws that formerly subsisted in this province, it might be done by another ordinance or two, that might be passed for that purpose, when the necessity of them should become apparent. By such an ordinance as is abovementioned passed at present, and by the establishment of an easy and cheap method of administering justice in this province with sufficient expedition, he conceives that the far greater part of your Majesty's Canadian subjects would be contented. This therefore is what he humbly presumes to recommend to your Majesty as the best method which he can suggest for the settlement of the laws of this province, after the fullest consideration of this difficult and important subject

Quebec, September 11th 1769.

FRANCIS MASERES,

Attorney General.

SESSIONAL PAPER No. 18

REPORT OF LORDS COMMISSIONERS FOR TRADE AND PLANTATIONS RELATIVE TO THE STATE OF THE PROVINCE OF QUEBEC.1

QUEBEC.

1769.

July 10th

To the Right Honorable the Lords of the Committee of His Majesty's Most Honorable Privy Council for Plantation Affairs.

My Lords,

3

Your Lordships having been pleased by your Order of the 28th of September 1768, to refer unto us two Letters to the Earl of Hillsborough, one of His Majesty's principal Secretaries of State, from sundry Merchants of London trading to, and deeply interested in the Province of Quebec, humbly recommending, that a full Legislature may be speedily granted for that Province; and that a number of His Majesty's Roman Catholic Subjects there may be admitted into the Council and House of Representatives; and your Lordships having also further thought fit to refer unto us a Report made by His Majesty's Advocate, Attorney and Solicitor General, upon the heads of a Plan for establishing Ecclesiastical Affairs in that Province, and to direct us to consider the said Papers, together with the present State of the said Province, in respect to the Administration of Justice, religious Establishments, and Revenue; and to report to your Lordships our Opinion, whether it may be advisable for His Majesty to direct an Assembly to be convened, and, if so, under what regulations and limitations such Assembly should be constituted, and what may be proper to recommend to their Consideration for the Welfare and interest of the Province in the several points above mentioned; We have, in pursuance of your Lordships said Order, taken the subject matter thereof into our Consideration, and beg leave to report to your Lordships.

That the Objects of examination and discussion, pointed out in your Lordships Order of reference, and upon which we are directed to report our opinion, appear to us to be of the greatest importance to the present and future Welfare of that Colony; and therefore, though the unsettled State of it's Government, the Jealousies and apprehensions on all hands represented to exist in the minds of the new Subjects on this Account, and the obstruction and embarrassment arising therefrom to the administration of public Affairs there, were circumstances, that did all concur to evince the necessity of some speedy reform; yet on the other hand, when we viewed the proposition of the

1 Canadian Archives Q. 18 B., p. 7.

66

When this report was drawn up in 1769 a policy of great secrecy with reference to the future govern ment of Quebec had just been adopted, with the result that between this time and the passing of the Quebec Act in 1774, few of the reports dealing with the policy of that measure are to be found among the State Papers. This report was prepared for the information of the Lords of Council and a copy of it was sent in a secret and confidential" despatch from Hillsborough to Carleton, Dec. 1st, 1769, to secure his opinion of the proposals. The general character and purpose of the Report is thus expressed :— "This Paper will not only fully inform you what Regulations and Reform are proposed in respect to the future Government of this important Colony, but will also point out to you the Arguments and Reasoning by which it is endeavoured to support the several Propositions." Its secrecy is indicated thus:-" This Report is sent to you in the greatest Confidence, and therefore you should be careful not only that no part of it is communicated to any other person, but that in conversing upon the subject of any Difficulties or Doubts that may arise, you do avoid the Appearance of their being other than the Result of your own Reflections; and I am particularly to desire that you will bring back the Copy of the Report with you, without suffering it to fall into any other hands whatever." Q. 6, pp. 129–30.

2 These letters have not been found, but they probably reflect a movement at the time in the Province of Quebec, as indicated in a letter from Carleton to Shelburne, Jan. 20th, 1768, (see p. 206), as also in his letter of Aug. 4th, 1768. In the latter he states that a few persons, who had been endeavouring to get up a petition for an Assembly, having failed, had apparently dropped the project.

3 This paper is contained in a Report of the Board of Trade to the Privy Council, dated May 30th, 1765, and is entitled, "Heads of a Plan for the Establishment of Ecclesiastical Affairs in the Province of Quebec." This is referred to in the representation of the Board of Trade of Sept. 2nd, 1765, see p. 171. It is given in full in the recently received but uncalendared volume Q 18 A, p. 88. See also Appendix No. 4 to this Report, p. 274.

6-7 EDWARD VII., A. 1907 Merchants in it's full extent, and saw the difficulties, that in the present peculiar State of this Colony would attend the making such a reform in it's civil constitution, as would give full satisfaction to the new Subjects, without violating those principles, upon which the British Government is fundamentally established; we did not think ourselves justified in making any report to your Lordships, or giving any opinion upon a matter, that His Majesty's former Councils had not thought fit in their great wisdom, even upon the fullest consideration, to take any resolution upon, without proceeding with the greatest circumspection, nor without the fullest information, that could be collected, as well from the correspondence of His Majesty's Servants there, as from the examination of persons here, who have been resident in, and are well acquainted with the affairs of Quebec.

The time, that has elapsed since the date of your Lordships order, has made it necessary for us to say thus much, lest your Lordships should impute to us a delay, which, if unnecessarily created, would not fail to subject us to your censure, in the case of an important part of His Majesty's Dominions suffering every inconvenience and disadvantage, that can arise out of a very imperfect, inadequate and defective Constitution, where the Inhabitants of it, consisting of above eighty thousand brave and loyal Subjects, do, by the nature and form of such Constitution, and the most unwarrantable Doctrines and Opinion founded thereon, Stand prescribed from every privilege, and denied every right, the possession of which can alone ensure their affection, and fix their attachment to the British Government.

How this comes to be the case in Quebec will be more fully seen by the following narrative of what has been established in respect to the Civil Concerns of that Colony, since it passed under His Majesty's Dominion; and from thence your Lordships will be enabled the better to judge of the propositions we shall submit to you, as the ground for such a reform in the Constitution of this Colony, as may consist with Justice and Equity, and we hope, be the means of for ever securing the possession of it to the Crown of Great Britain.

On the eighth of September 1760, Canada with it's dependencies was surrendered to His Majesty by Capitulation,' in which it is Stipulated, that the Inhabitants both Laiety and Ecclesiastics shall become subjects of the crown of Great Britain, reserving the free exercise of their Religion, and the entire possession of their property under all descriptions.

On the tenth of February 1763 the definitive Treaty of Peace was signed at Paris; by the fourth Article of which, Canada with all its dependencies is ceded to the crown of Great Britain, and His Majesty agres to grant the liberty of the Catholic Religion to the Inhabitants of Canada, and that he will consequently give the most precise and most effectual orders, that His New Roman Catholic Subjects may profess the worship of their Religion according to the Rites of the Romish Church, as far as the Laws of Great Britain permit.

In October 1763 His Majesty was pleased by Letters Patent under the Great Seal to appoint the honorable James Murray Esquire to be Governor of this Colony, the limits of which are thereby fixed and ascertained, and it's former name of Canada changed into that of Quebec.

By these Letters Patent, and by the Instructions from His Majesty, which accompanied them, the Governor is authorised and impowered,

First. To appoint a Council to assist him in the administration of Government, consisting (according to the usage and constitution of other Colonies) of twelve persons, eight of which to be chosen from amongst the most considerable of the Inhabitants and Persons of property in the said Province, and the remainder to be composed of the principal Officers of Government.

Secondly, To Summon and call, with the advice and consent of the said Council, as soon as the situation and circumstances of the Province shall admit, a general

1 Capitulation of Montreal; see p. 8.

2 Treaty of Paris; see p. 73.

3 Commission to Governor Murray; see p. 126.

4 Instructions to Governor Murray; see p. 132.

SESSIONAL PAPER No. 18

Assembly of the Freeholders and Planters, in such manner, as he shall judge most proper, or according to such further directions or authorities, as shall be given to him under His Majesty's Signet or sign Manual, or by Order in Council.

Thirdly, To take himself, and also administer to each of the members of the said Council and Assembly the Oaths mentioned in the Act of Parliament of the first of George the First, and to subscribe himself and to cause them to subscribe the Declaration against Transubstantiation, mentioned in the Statute of the twenty fifth of Charles the second; and it is ordered, that, until the said Oath and Declaration shall have been so taken, and subscribed, no person, though elected, shall be capable of sitting in the Assembly.

Fourthly, To make, constitute and ordain, with the advice and consent of the said Council and Assembly, Laws, Statutes and Ordinances for the public peace, welfare and good Government of the said Province; which Laws, Statutes and Ordinances are not to be repugnant to, but, as near as may be agreable to the Laws and Statutes of this Kingdom; and until the Situation of the Province should admit of calling an Assembly, he is, with the Advice of the Council, to make from time to time such rules and regulations, as shall appear to be necessary for the peace, order and good Government of the Province; taking care, that such rules and regulations shall not extend to affect the life, limb, or liberty of the Subject, or to the imposing any Duties, or Taxes.

Fifthly. To establish such and so many courts of Judicature and public Justice, as shall appear to be necessary, and to constitute and appoint Judges, Commissioners of Oyer and Terminer, Justices of the Peace, and other necessary Officers and Ministers. These are all the directions and authorities, which seem necessary for the present purpose to be recited; the rest of the powers contained in the Commission are the same, as are usually given to the Governors of other Colonies; but as it is material to observe, that the Letters Patent direct, that he shall execute his command according to the powers and directions contained therein, and in the Instructions which accompanied them, or "according to such further Powers or Instructions, as may be hereafter given "to him under His Majesty's Signet or sign Manual, or by Order in Council, and con"formable to such reasonable Laws and Statutes, as shall be made and agreed upon by "him with the advice and consent of the said Council and Assembly.'

On the seventh of October 1763 His Majesty's Proclamation was published, declaring the limits and extent of the four new Governments of Quebec, East Florida, West Florida, and Grenada, reciting the powers, given to the Governors by their Commissions under the Great Seal, of Summoning Assemblies, and of passing Laws with the advice and consent of the said Councils and Assemblies; and containing His Majesty's Royal Assurance, that, in the mean time, and until such Assemblies could be called, all persons inhabiting in, or resorting to the said colonies might confide in His Majesty's Royal Protection for the enjoyment of the benefit of the Laws of England.

By these Constitutions the form of Government established in this Colony by the Crown of France, and adopted with some Variations after the conquest of it, though. not entirely abolished, as some persons have contended, was yet, in many parts of it, materially altered, and made to correspond with that form of Government, which has been established in His Majesty's other American Colonies. The having a complete Legislature competent to those regulations, which a Colony under such Circumstances must necessarily require, appears to have been one of the first Objects; and there can be no doubt, but that His Majesty's Commission and Proclamation, in the provision they make for this purpose, had in view to extend to His Majesty's new Subjects those Privileges, which exist in the principles of a British Constitution. But the exercise and operation of this Legislative Power having been rendered impracticable by inserting in the Commission, without sufficiently adverting to the state of the Colony the restriction,3 that no person should sit in the Assembly, who had not subscribed the Test, required in this Kingdom by the Act of the twenty fifth of Charles the second, the powers of Government became confined to the Governor and Council, whose authority not extend

1 See p. 133.

2 See p. 119. 3 See p. 128.

6-7 EDWARD VII., A. 1907

ing to cases, which might affect either the life, limb, or liberty of the Subject, or to the imposing Duties and Taxes, was incompetent to those regulations, which the situation of the Colony required; and consequently no provision has been made for establishing such a reasonable Revenue, as may be adequate to the necessary expences of Government, the whole of which is now a burthen upon His Majesty's Treasury here. The Roman Catholic Religion, though barely tolerated by the Treaty, remains without any regulation, reform, or control whatever, and that of the Mother Country without any provision or support.

Besides these capital objects, there are many other constitutional establishments, and necessary services, for which no provision either has been, or can be made in the present state of the Colony; and it has even been found necessary to disallow several Ordinances of the Governor and Council, in Matters merely of local regulation, and internal œconomy, from a consideration of the Want of a due authority to enact them.

These wants and defects are of themselves sufficient to evince the necessity of having a complete legislative power, for the establishment of which it is humbly conceived the Faith of the Crown stands fully pledged, both by the Commission under the Great Seal, and by the Proclamation; but the state of the Colony, in respect to the Administration of Justice in civil cases, is a circumstance, that does above all others mark the necessity of some form of Government more perfect and effectual.

On the seventeenth of September 1764 the Governor and Council promulged an Ordinance for establishing and regulating Courts of Justice, by which the plan of Judicature is made to consist of a Superior Court, having the Jurisdiction of the Court of King's Bench; an inferior Court, having the Jurisdictions of the Court of Common Pleas, and Courts of Oyer and Terminer, Assize, and Goal Delivery; and it is declared by this Ordinance, that all matters, Civil and Criminal, shall be heard and determined in these Courts agreable to the Laws of England.

According to the construction put upon this Ordinance by those who framed it, it was to be understood, that not only the proceedings in these Courts were to be carried on according to the modes and forms established in the Courts in Westminster Hall, but also all the principles of the Law of England, relative to Descents, Tenure, &c., which totally, or in part differed from the Antient customs of Canada, and also all those local and Municipal Laws, which have from local convenience and consideration obtained in this Kingdom, were thereby introduced into Canada, and become Laws there. In consequence of these opinions and constructions, the customs of Canada, which before governed in all suits concerning property, were laid aside; and a further ill effect of the ordinance was, that, instead of that Summary and easy process, which had before been used in the adjudication of questions of this nature, it had the effect to introduce all that delay, perplexity and expence, which accompanies the lowest and most disgraceful practice in this Kingdom; and the new Subjects, who were precluded from serving on Juries," or pleading their own Causes, were compelled to entrust the prosecution of them to men unacquainted with their language and Customs, and who to the greatest ignorance added the grossest rapacity.

3

It is not to be wondered, that establishments, so inconsistent with the civil rights of the Canadians, and so oppressive in their operation, should have given that disgust, so strongly, and yet so respectfully expressed in their humble Address to His Majesty on this occasion; more especially, when, in a Presentment of a Grand Jury impanelled at a Quarter Sessions, they found their Religion presented, as illegal; themselves not only proscribed, as incapable of the common offices of Society, but also subjected to all the Pains and Penalties inflicted upon Popish Recusants in this Kingdom; and a right claimed by such grand Jury of being the only representative body of the Colony, and of being consulted upon all Measures of Government.

2 See, however, Murray's comment on this feature of the ordinance, as given in note 4, p, 149, and note 2, p. 150.

3 See note 3, p. 150.

4 See Address to the King, 1764, p. 161.

5 See presentment of Grand Jury, p. 153, and Reply of French jurors, p. 156.