Vindication of the king's former con

duct in intro ducing the laws of England into Canada.

The same thing was done in Ireland;

6-7 EDWARD VII., A. 1907

We further beg leave to represent, that we apprehend his majesty's former conduct in introducing the laws of England into the said province by his proclamation and other instruments aforesaid, to have been in no wise unusual, or severe, or particularly harsh, with respect to his new Canadian subjects, nor to have been unexpected by them, but to have been the natural and known consequence of the conquest and cession of the country to his majesty by the late peace, according to the policy of the crown of Great-Britain on the occasion of similar conquests in former times. And we particularly beg leave to observe, that the whole law of England has been introduced into the kingdom of Ireland, in consequence of the conquest of it by the arms of England, without any the least mixture of the antient Irish laws, even upon the subjects of tenures and descents of land and no inconvenience has been found to follow from it; but, on the contrary, the similitude of laws is at this day a strong ground of union and mutual affection between the inhabitants of the two countries. And the like has been done with respect to the principality of Wales; And in Wales; in which the English law is the only law that has been allowed for more than two hundred years past and the like good effects have followed from it. And in the last century, upon the conquest of the province of New-York, then called the New Netherlands, from the Dutch, the And in New- same policy was observed, and the Dutch laws were totally abolished, and the English laws introduced in their stead, which have prevailed there ever since. And yet, at that time, the Dutch settlers in that province were very numerous, and from them much the greater part of the present inhabitants are descended. And, in conformity to these examples, we did conceive his most gracious majesty to have intended to introduce the laws of England, by his proclamation aforesaid, into the four new governments of Granada, East Florida, West Florida, and Quebeck, instead of the French and Spanish A power of doing so in laws, which had prevailed therein under the former governments. And we Canada was conceive this conduct of his most gracious majesty, to have been no way expressly re- derogatory to the articles of capitulation, granted to his Canadian subjects served to the king by the by general Amherst, upon the surrender of the whole country to his majesty's capitulation. arms in September, one thousand seven hundred and sixty'; because, when the French general expressly demanded, in one of the articles of capitulation, "That the French and Canadians should continue to be governed according to the custom of Paris, and the laws and usages established for that country, and that they should not be subject to any other imposts than those that were established under the French dominion;" the said general Amherst, in his answer to the said demand, declares, "That they become the king's subjects; thereby avoiding to tie up and preclude his late majesty, and his royal successors, from making such changes in the laws and taxes of the said province, as to his royal wisdom should seem meet.

York.

The parts of the English

We further beg leave to represent, that we are most especially anxious for the preservation of those parts of the English law which relate to matlaw which the ters of navigation, commerce, and personal contracts, and the method of petitioners most particu determining disputes upon those subjects by the trial by jury, and likewise for larly desire to those parts of it which relate to actions for the reparation of injuries received, be continued such as actions of false imprisonment, and of slander, and of assault, and

in the prov

ince.

whatever relates to the liberty of the person, and most of all for the writ of habeas corpus, in cases of imprisonment; which we take to be, in the strongest and most proper sense of the words, one of the benefits of the laws of England, of which his majesty has promised us the enjoyment by his proclamation above-mentioned, and which we apprehend to be a part of the English system of jurisprudence, to which our new Canadian fellow-subjects. will not object.

1 See Capitulation of Montreal, p.8.

2 Capitulation of Montreal, articles 41 & 42; see pp.17-18 & 27.

SESSIONAL PAPER No. 18

The pro3perous con

And we beg leave to represent, that the province of Quebeck has thriven dition of the exceedingly, both in agriculture and trade, since the establishment of the province since civil government of the province, and the introduction of the English laws the introduc- into the same; having exported last year about three hundred and fifty English law. thousand bushels of corn; whereas, in the time of the French government, they exported none at all, and produced hardly enough for their own subsistence.

tion of the

The greater part of the

And we further beg leave to represent, that much the greater part of this trade of the trade is carried on by his majesty's old British subjects in the said province; province is carried on by by which they may justly claim to themselves the merit of having been the the British in- principal promoters of the late great improvement of the province.

habitants of

it.

vival, or con

the French

laws relating

And we further beg leave to represent, that we by no means object to a The petition revival or continuance of the former French laws concerning the tenures of ers do not ob- land, and the methods of alienating and conveying land, nor even concerning ject to the re- the inheritance of land belonging to Canadians born, or to be born, of marriages tinuance, of already contracted; nor concerning dower, or the other civil rights of either men or women resulting from the matrimonial contract, so far as they relate to marriages already contracted. And we conceive that the revival of the French laws in these particulars, with full powers given to the Canadians of future times to continue them in their respective families at their pleasure by marriage-agreements, last wills, or deeds in their life-time, would be sufficient to give full satisfaction to the bulk of his majesty's new Canadian subjects, and make them acquiesce very chearfully in the general establishment of the laws of England, in conformity to his majesty's proclamation above-mentioned, upon all other matters.

to landed property.

Many of the British inhabitants of the

province are possessed of

considerable

quantities of landed prop erty in it.

Concerning an assembly of the freeholders of the province.

And we further beg leave to represent, that several of his majesty's Old British subjects are possessed of a considerable quantity of landed property in the said province, and that others of them are daily becoming so: and hereupon we will venture to affirm, that sixteen of the seigniories of that province, and some of them the most valuable ones in the country, are in the hands of the said Old British subjects.'

And we further beg leave to represent, that, in consequence of his majesty's most gracious promise contained in his proclamation aforesaid, that, as soon as the situation and circumstances of the said province would permit, an assembly of freeholders and planters of the same should be called by his majesty's governour thereof, which, in conjunction with the said governour, and his majesty's council of the said province, should have power to make laws and ordinances for the welfare and good government of the said province, we have constantly entertained hopes that an assembly of the freeholders of the same would soon be established, and that we should enjoy the benefits resulting from that free and equitable method of government in common with the inhabitants of the adjoining provinces of North-America. The peti- And therefore we beg leave to represent, that we have been very greatly tioners are alartned at the alarmed by that part of the bill now before parliament, which seems to clause for es- cancel the said most gracious promise of our sovereign, and to deprive us of tablishing a all hopes of obtaining the establishment of a general assembly of the freelegislative council in the holders of the said province, and to establish in the stead thereof a very province. different mode of government in the said province, by a legislative council, consisting of persons appointed by, and removeable at the pleasure of, the crown; more especially as the said new mode of government, (which we presume nothing but some urgent and very peculiar circumstances of necessity can be thought a sufficient reason for adopting) is not limited in the said bill to continue for only a certain small number of years, after which they might hope to have an assembly in the said province, agreeably

1 See "List of British proprietors of Lands in the Province of Quebec, 1773." Dartmouth Papers, M 384, p.233. Twenty nine of these are designated as holding seigniories.

to form an

to call one.

6-7 EDWARD VII., A. 1907

to the said royal promise, but is established in very general terms, that remove that agreeable prospect out of their sight.

The want of a We further beg leave to represent, that we have hitherto been made to sufficient understand, that the reason of the omission of his majesty's governours of number of the said province to call a general assembly of the freeholders of the same, protestant landholders in from the first establishment of the civil government thereof, in the year the province one thousand seven hundred and sixty-four, to the present time, according assembly has to the powers and directions given them by his majesty in that behalf, in been hitherto their commissions of captain-general and governour in chief of the said alledged as province, has been the difficulty of finding a sufficient number of subjects the reason of the omission of his majesty in the said province properly qualified, in all respects, to be members of such assembly, according to the directions of the said commissions, which required, that all persons who should become members either of the said assembly of the freeholders of the said province, or of his majesty's council of the same, should take the oath of abjuration of the pope's power, and subscribe the declaration against transubstantiation, as well as take the oath of allegiance and the oath of abjuration of the pretender's right to the crown of these realms, before they were admitted to sit and vote in such assembly and council.1 And this objection, we beg leave to represent, That reason is is now thought, by persons well acquainted with the said province, to be at now at an end, an end, there being now a sufficient number of freeholders in the said prothere being a vince to constitute a house of assembly, willing and ready to take the said number of oaths and declaration; in proof of which we beg leave to inform this honourprotestant able house, that a petition has been lately presented to his majesty from the that purpose. British and protestant inhabitants of the said province, signed by a great number of persons of that description, requesting his majesty to summon and call such a general assembly of the freeholders of the said province, and assuring him that there are a sufficient number of persons in the said province qualified according to the direction of his majesty's commission for that. purpose, and humbly representing to his majesty, that the situation and circumstances of the said province are at present such, as not only render the said measure of establishing a general assembly practicable, but likewise make it to be highly expedient for the regulation and improvement of the said province."

sufficient

freeholders for

And we beg leave further to represent, that if it be thought inexpedient on the one hand to constitute a house of assembly, consisting of protestants only, agreeably to the directions of his majesty's commissions before-mentioned, on account of the great superiority of the numbers of the RomanCatholicks in the said province, who would thereby be excluded from sitting in such assembly; and, on the other hand, it be thought dangerous to sum mon a general assembly into which the Roman-Catholicks should be admitted indiscriminately with the protestants; and, on account of this twofold difficulty, it be judged necessary to have recourse to the new method of government above-mentioned, by investing a council of persons nominated, and removeable at, the pleasure of the crown, with a certain degree of Objection to the admission legislative authority; we humbly hope that the same reasons which make it be judged dangerous to admit the Roman-Catholick inhabitants of the said province into a share of the legislative authority by means of an open assembly of the same, will be thought sufficient to exclude them from obtain. ing a share of the same authority by an admission into this new legislative council; which, being a single body invested with the power of making laws for the province, will be of more weight and consequence in the same, than an assembly of the freeholders would be, if the plan of government promised by his majesty's proclamation and commissions above-mentioned, by a

of RomanCatholicks

into the legis lative council.

1 See conditions stated in Murray's Commission, p.128.

2 See Petition to the King from Quebec and Montreal, p. 347.

SESSIONAL PAPER No. 18

Necessity of making the members of

governour, council and assembly, had been pursued. And therefore we cannot but express our concern to find, that in the bill now before parliament,' there is no provision that all, or even any of, the members of the said intended council should of necessity be protestants, but that they may be all Roman-Catholicks notwithstanding any thing contained in the same. And therefore we most humbly and earnestly intreat this honourable house to take care that, if such a legislative council must be established in the said province, in lieu of an assembly of the freeholders of the same, the members thereof shall be all protestants; or, if that be thought too much to grant to them, that at least a majority of the members of the said council should necessarily be protestants, and only a few of the most moderate sort of Roman-Catholicks should be admitted into it, who should be required to take the oath of abjuration of the pope's authority, though not to subscribe the declaration against transubstantiation; which is a temperament, which, as we conceive, might lead to good effects hereafter.

And we further beg leave to represent both on our own account, and in behalf of our friends and correspondents, the antient British inhabitants the legislative now residing in the said province, that, if the said province must be gocouncil inde- verned by a legislative council, nominated by his majesty, without the conpendent of the currence of an assembly of the freeholders of the same, we humbly hope governour. that a clause will be inserted in the bill, to render the members of the said council incapable of being either removed or suspended by his majes ty's governour of the said province, and liable only to be removed by his majesty himself, by his order in his privy council, (of whose wisdom and justice we can entertain no suspicion) to the end, that the said counsellors may both act with a spirit of freedom and independence becoming their high offices of legislators of the said province, and be thought to do so by the people of the same, instead of being considered as dependent creatures and tools of the will and pleasure of the governour for the time being, as we conceive will be the case, if he shall be invested with a power of removing or suspending them from their said offices at his discretion.

ber of mem

The petition- And we beg leave further to represent, that it is also our wish, if such ers désire a legislative council shall be established in lieu of an assembly, that the that the legislative council number of the members thereof may be fixed and certain, instead of being may consist of liable to vary between the numbers of seventeen and twenty-three persons, a certain num- as is proposed in the present bill; and likewise, that the said council may bers, instead be made as numerous as conveniently may be, to the end, that it may conof a number tain within it persons acquainted with every part of the province, and the that may be varied at interests of the inhabitants residing in the same, and that their acts and pleasure. resolutions may be, for the most part, agreeable to the sentiments of the body of the people over whom they are to preside. And, with respect to And they sug- this point, we beg leave to represent, that it is the opinion of some of the gest that their most judicious and respectable of our friends and correspondents in the said province, that it would be easy to find thirty-one persons amongst the British and other protestant inhabitants of the said province, capable of being useful members of such a council.

number should be

thirty-one

They further desire that a majority of the whole number of counsellors

may be made necessary to

the transact ing of business.

And we further beg leave to represent, that in case such a legislative council should be established, it is our earnest desire that provision may be made in the said bill, that a certain number of the members of the same shall be necessary to transact business; without which it may happen, that a very small part of the whole body, as, for example, five or six persons, shall occasionally exercise the great powers vested in the whole, and make laws and ordinances that shall bind all the inhabitants of the province; which, we humbly conceive, would be highly inexpedient and unbecoming, and cause great uneasiness in the said province. And we are

1 The Quebec Bill.

And that the

members may

be paid for

their attendance at the

council, a certain sum of money for

ance.

And that the

to the end that

6-7 EDWARD VII., A. 1907

humbly of opinion, that the number thus made necessary to the exercise of these high legislative powers, ought to be more than half the whole number of the members of such council.

And we further beg leave to suggest it as our opinion concerning this legislative council, that it would be expedient that the members thereof should receive some reasonable reward out of the publick revenue of the province, for every attendance at the meetings of the said council on the legislative business of the said province, sufficient, at least, to defray the expences of travelling to the place where the said meetings shall be held, and of residing there during the time of the said meetings; to the end, that at all the meetings of the said council, there may be a very full attendance of counsellors, who may concur in exercising the said high authority; without which, the ordinances they shall pass will not be very likely to obtain the reverence due to them from the people, nor meet with a chearful obedience.

But above all, we beg leave to repeat our most earnest hopes and desires, said council that the establishment of the said legislative council (if it shall be may be established for only resolved that such a one shall be established,) may be only for a small a small num- number of years, to the end, that, in case it shall hereafter appear to his ber of years, majesty, that the situation and circumstances of the said province will the province admit of the summoning a general assembly of the freeholders of the same, we may at last reap the benefit of his most gracious promise to us in his proclamation and commissions above-mentioned, that we should be governed in the usual and approved method of his majesty's other colonies in America, by a governour, council, and assembly.

may after

wards be gov erned by an assembly.

We therefore humbly hope, that the honourable house of commons will take our case into consideration, and permit us to be heard by our council at the bar of their house, to the several heads mentioned in this state of it, and to such other parts of the bill now before them, as we shall apprehend ourselves to be concerned in interest to object to, either on our own account, or in the behalf of our correspondents and friends, the Old British subjects of the crown now residing in the said province. And we have a firm reliance on the wisdom and justice of this honourable house, the representatives of the Commons of Great-Britain, for a satisfactory determination upon all the matters contained in this case, and upon the other points which may be submitted to their consideration by our counsel at their bar, and for the protection of our rights and liberties, as British subjects, who have acted under the sanction of his majesty's royal proclamation above-mentioned.

LORD MANSFIELD'S JUDGMENT IN CAMPBELL v. HALL, 1774.1

The case of the Island of Grenada; in relation to the payment of four and one-half in the hundred of goods imported therefrom; between Alexander Campbell, Esq., Plaintiff, and Wm. Hall, Esq., Defendant, in the Court of King's-Bench, before Lord ChiefJustice Mansfield: 15 George III., A.D. 1774.

November 28.

The unanimous judgment of the Court was this day given by Lord Mansfield, as follows:

This is an action brought by the plaintiff, Alexander Campbell, who is a naturalborn subject of Great Britain, and who, upon the third of May, 1763, purchased lands

1 After comparing the versions of this Judgment as given in Cowper's "Reports," Lofft's "Reports," and Howell's "Complete Collection of State Trials" Vol. XX, it has been found that, with some slight variations, the selected version given by Mr. Wm. Houston in his "Documents illustrative of the Canadian Constitution" p.79, may be safely followed, and is therefore substantially that given here.