SESSIONAL PAPER No. 18 George R. INSTRUCTIONS TO GOVERNOR CARLETON, 1775.1 Instructions to Our Trusty and Welbeloved Guy Carleton Esquire, Our First, With these Our Instructions you will receive Our Commission under Our Great Seal of Great Britain, constituting you Our Captain General and Governor in Chief in, and over Our Province of Quebec in America, and all Our Territories thereunto belonging, as the said Province and Territories are bounded and described in, and by the said Commission. You are therefore to take upon you the Execution of the Office and Trust We have reposed in you, and the Administration of the Government, and to do and execute all things in due manner, that shall belong to your Command according to the several Powers and Authorities of our said Commission under Our Great Seal of Great Britain, and these Our Instructions to you, or according to such further Powers and Instructions, as shall at any time hereafter be granted or appointed you under Our Signet and Sign Manual, or by Our Order in Our Privy Council; and you are to call together at Quebec, (Which We do hereby appoint to be the place of your ordinary Residence, and the principal Seat of Government,) the following persons whom we do hereby, with the Advice of Our Privy Council, constitute and appoint to 1 Canadian Archives, M. 230, p. 116. There are several memoranda among the Dartmouth Papers, giving suggestions or draughts of various parts of the new Instructions for the Governor of Quebec. Most of these are without name or date. Some of them are referred to in connection with the articles of the Instructions to which they relate. Among them is one endorsed, "Minutes of Quebec Instructions," which indicates some of the chief points to be considered in framing the Instructions. It is as follows:(the numbers of the articles in the Instructions which embody the features indicated are given within brackets after each head): "Quebec--Habeas Corpus writ [13] "Supreme Court of criminal Jurisdiction called K Bench. 2 Districts, Quebec & Montreal C. of Com. Pleas in each for civil suits 3 Judges in each. 2 Nat. Born & 1 Canadian. 1 C. of K's B. in each of the 5 out Posts. 1 Judge, & 1 Canad. Assessor in Treason murder or Cap. Felony only to have power to commit Council to be Court of appeal where above 10£ final to £500, above appeal to K. in Council. all Commissions, during pleasure. [15] Gov not to displace officers without representation. [17] "No ecclesiast. Jurisd. to be exercised without Licence. No person to be ordained without Licence. [21, sec. 2] 66 Prot. Tythes to be paid to Recr Gen! for support of Protestant Clergy. [21, sec. 5] "Seminaries of Qu. & Montr. to remain- [21, sec. 11] 66 All other Communities (except J'suits) to remain as at present-not to fill up except Nuns." [21, sec. 12] M. 385, p. 372. On Dec. 5, 1774, the Board of Trade submitted to the King the draught of a new Commission for Governor Carleton with such formal changes only, as compared with the last, as were required by the terms of the Quebec Act. On Dec. 22nd the Board of Trade laid before the King the draught of the General Instructions for Governor Carleton. "This draught," they say, "contains not only such Instructions as are usually given to other governors, so far as the same are applicable to this Province under its New Constitution of Government; but also such other directions for the establishment of Judicature; the reform and regulation of Ecclesiastical matters; and the arrangements proper to be made in respect to the Coast of Labrador, and the interior Country, as appear to us to be necessary in consequence of the Act passed in the last Session of the late Parliament; it also contains an appointment of the Council conformable to that Act, and directs the provisions to be made for the support of the Civil Establishment of Government. "We also humbly beg leave to lay before your Majesty a draught of such Instructions to your Majesty's Governor of Quebec as are usually given to the governors of your Majesty's other. Colonies respecting the observance and the execution of the Laws for regulating the Plantation Trade. "All which is most humbly submitted, Whitshed Keene, C. F. Greville, Soame Jenyns, W. Jolliffe." Q. 18 B., p. 108. On Jan. 7th, 1775, Dartmouth sent a despatch to Carleton enclosing his Commission and Instructions. After repeating the statements of the Board of Trade, given above, he adds, "These documents contain such arrangements, in consequence of the Act of the 14th of his present Majesty, for providing for the more effectual Government of the Province of Quebec, as were necessary to accompany the new Commission, & also the outlines of that System of Judicature, & general Regulation of Ecclesiastical Affairs, which the King thinks fit should be provided for by Ordinances of the Legislative Council. Q. 11, p. 59. 18-3-27 6-7 EDWARD VII., A. 1907 be Our Council for the Affairs of Our said Province of Quebec, and the Territories thereunto belonging; Viz. Hector Theophilus Cramahé Esquire, Our Lieutenant Governor of Our said Province or Our Lieutenant Governor of Our said Province for the time being, Our Chief Justice of Our Province for the time being, Hugh Finlay, Thomas Dunn, James Cuthbert, Colin Drummond, Francis Les Vesques; Edward Harrison, John Collins, Adam Mabean,-De Lery,-S' Ours, Picodyde Contrecoeur, Our Secretary of Our said Province for the time being, George Alsopp,-De La Naudiére, La Corne St Luc, Alexander Johnstone, Conrad Gugy,-Bellestres,-Rigauville, and John Fraser Esquires; All and every of which Person and Persons shall hold and enjoy his & their Office and Offices of Councillor or Councillors for Our said Province of Quebec, for and during Our Will and Pleasure, and his or their Residence within Our said Province, and not otherwise. 2. It is Our further Will and Pleasure, that any five of the said Council shall constitute a Board of Council for transacting all Business, in which their Advice and consent may be requisite, Acts of Legislation only excepted, (in which Case you are not to act without a Majority of the whole,) And it is Our further Will and Pleasure, that the Members of Our said Council shall have and enjoy all the Powers, Priviledges and Emoluments enjoyed by the Members of Our Councils in Our other Plantations; and also such others as are contained and directed in Our said Commission under Our Great Seal of Great Britain, and in these Our Instructions to you; and that they shall meet together at such time and times, place and places, as you in your discretion shall think necessary, except when they meet for the purpose of Legislation, in which Case they are to be assembled at the Town of Quebec only. 3. And You are with all due and usual Solemnity to cause Our said Commission to be read and published at the said Meeting of Our Council, which being done, you shall then take and also administer to each of the Members of Our said Council, (not being a Canadian, professing the Religion of the Church of Rome,) the Oaths mentioned in an Act passed in the first year of the Reign of His Majesty King George the first, intituled, "An Act for the further Security of His Majesty's Person, and Gov"ernment, and the Succession of the Crown in the Heirs of the late Princess Sophia, "being Protestants; and for extinguishing the hopes of the pretended Prince of "Wales, and his open and secret Abettors," as altered and explained by an Act passed in the sixth year of Our Reign, intituled, "An Act for altering the Oath of Abjura"tion, and the Assurance; and for amending so much of an Act of the seventh year "of Her late Majesty Queen Anne, intituled, An Act for the Improvement of the "Union of the two Kingdoms, as, after the time therein limited, requires the delivery "of certain Lists and Copies, therein mentioned, to persons indicted of High Treason, "or Misprision of Treason;" as also make and subscribe, and cause them to make and subscribe the declaration mentioned in an Act of Parliament made in the twenty fifth Year of the Reign of King Charles the second, intituled, "An Act for preventing "Dangers, which may happen from Popish Recusants;" and you and every one of them are likewise to take an Oath for the due Execution of your and their Places and Trusts, with regard to your and their equal and impartial Administration of Justice; and you are also to take the Oath required by an Act passed in the seventh and eighth years of the Reign of King William the third, to be taken by Governors of Plantations to do their utmost, that the Laws relating to the Plantations be observed. 4. And Whereas by an Act passed in the fourteenth year of Our Reign, intituled, "An Act for making more effectual provision for the Government of the Province "of Quebec in North America," it is enacted and provided, that no person, professing the Religion of the Church of Rome, and residing in the said Province, shall be obliged to take the Oath of Supremacy required by an Act passed in the first year of the Reign of Queen Elizabeth, or any other Oaths substituted by any other Act in the place thereof; but that every such Person, who by the said Statute is required to take the Oaths therein mentioned, shall be obliged, and is thereby required, under certain Penalties, to take and subscribe an Oath in the form and Words therein prescribed, and set down; It is therefore Our Will and Pleasure, that you do administer to each and every Member of Our said Council, being a Canadian, and professing the Religion SESSIONAL PAPER No. 18 of the Church of Rome, and cause each of them severally to take and subscribe the Oath mentioned in the said Act passed in the fourteenth year of Our Reign, intituled; "An Act for making more effectual provision for the Government of the "Province of Quebec in North America ;" and also cause them severally to take an Oath for the due Execution of their places and Trusts, and for their equal and impartial administration of Justice. 5. And that We may be always informed of the Names and Characters of Persons fit to supply the Vacancies, which may happen in Our said Council, You are from time to time to transmit to Us, by one of Our Principal Secretaries of State, the names and Characters of such persons, Inhabitants of Our said Colony, whom you shall esteem the best qualified for that Trust; And you are also to transmit a duplicate of the said Account to Our Commissioners for Trade and Plantations, for their Information. 6. And if it shall at any time happen, that by the death or departure out of Our said Province, of any of Our said Councillors, there shall be a Vacancy in Our said Council, Our Will and Pleasure is; that you signify the same to Us by one of Our principal Secretaries of State, and to Our Commissioners for Trade and Plantations, by the first Opportunity, that we may by Warrant under Our Signet and Sign Manual, and with the Advice of Our Privy Council, constitute and appoint others in their stead. 7. You are forthwith to communicate such and so many of these Our Instructions to Our said Council, wherein their Advice and Consent are mentioned to be requisite, as likewise all such others from time to time, as you shall find convenient for Our Service to be imparted to them. 8. You are to permit the Members of Our said Council to have and Enjoy Freedom of Debate and vote in all Affairs of Public Concern, that may be debated in Council. 9. And Whereas by the aforesaid Act passed in the fourteenth year of Our Reign, intituled, "An Act for making more effectual Provision for the Government of the "Province of Quebec in North America," It is further enacted and Provided, that the Council for the Affairs of the said Province, to be constituted and appointed in Manner therein directed, or the Major Part thereof, shall have power and Authority to make Ordinances for the peace, Welfare, and good Government of the said Province with the Consent of Our Governor, or, in his absence, of the Lieutenant Governor, or Commander in Chief for the time being; provided, that no Ordinance shall be passed, unless upon some urgent Occasion at any Meeting of the Council, except between the first day of January and the first day of May. *(And Whereas the State and condition of Our said Province do require, that immediate provision should be made by Law for a Great Variety of Arrangements and Regulations essentially necessary to the Government thereof; It is therefore Our Will and Pleasure, that you do within a convenient time issue Summons for the Assembling of our said Council in their Legislative Capacity either on the first day of April next, or as soon after as may be convenient, in Order to deliberate upon, and frame such Ordinances, as the Condition of Affairs within Our said Province shall require, and as shall, in your and their Judgement, be fit and necessary for the Welfare of Our said Province, and the Territories thereunto belonging.)1 10. You are nevertheless to take especial Care, That no Ordinance be passed at any Meeting of the Council, where less than a Majority of the Council is present, or at any time, except between the first day of January and the first day of May, as aforesaid, unless upon some urgent Occasion; in which Case every Member thereof resident at Quebec, or within fifty Miles thereof shall be personally summoned to attend the same. That no Ordinance be passed for laying any Taxes or Duties, such Rates and Taxes only excepted, as the Inhabitants of any Town or District may be authorized to assess, levy, and apply within the said Town or District, for the making Roads, erecting and repairing public Buildings, or for any other purpose respecting the Local Convenience and Oeconomy of such Town or District. *The latter part of this section (in bracket) omitted in the instructions to Haldimand. 1 No session of the Council for legislative purposes took place before January, 1777. 6-7 EDWARD VII., A. 1907 That no Ordinance touching Religion, or by which any punishment may be inflicted greater than Fine or Imprisonment for three Months, be made to take effect, until the same shall have received Our Approbation. That no Ordinance be passed relative to the Trade, Commerce, or Fisheries of the said Province, by which the Inhabitants thereof shall be put upon a more advantageous footing, than any other His Majesty's Subjects either of this Kingdom, or the Plantations. That no Ordinance respecting private property be passed without a Clause suspending its Execution, until Our Royal Will and Pleasure is known; nor without a saving of the Right of Us, Our Heirs, and Successors, and of all Bodies politic and corporate, and of all other persons, except such as are mentioned in the said Ordinance, and those claiming by, from, and under them; And, before such Ordinance is passed, proof must be made before you in Council, and entered in the Council-Books, that public Notification was made of the Party's Intention to apply for such Ordinance in the several Parish Churches, where the Lands in Question lye, for three Sundays at least successively, before any such Ordinance shall be proposed; and you are to transmit and annex to the said Ordinance a Certificate under your hand that the same passed through all the Forms abovementioned. That no Ordinance shall be enacted for a less time than two years, except in Cases of imminent Necessity, or immediate temporary Expediency; and you shall not reenact any Ordinance, to which Our Assent shall have been once refused, without express leave for that purpose first obtained from Us, upon a full Representation by you to be made to Us by one of Our Principal Secretaries of State, and to Our Commissioners for Trade and Plantations, for their Information, of the Reasons and Necessity for passing such Ordinance; nor give your Assent to any Ordinance for repealing any other Ordinance, which hath passed in your Government, and shall have received Our Royal Approbation, unless you take Care, that there be a Clause inserted therein suspending and deferring the Execution thereof, until Our Pleasure shall be known, concerning the Same. That in all Ordinances imposing Fines, Forfeitures, or Penalties, express Mention be made, that the same is granted, or reserved to Us, Our Heirs, and Successors for the public Uses of the said Province, and the Support of the Government thereof, as by the said Ordinance shall be directed; and that a Clause be inserted declaring, that the Money, arising by the Operation of the said Ordinance, shall be accounted for unto Us in this Kingdom, and to Our Commissioners of Our Treasury for the time being; and audited by Our Auditor General of Our Plantations, or his Deputy. That all such Ordinances be transmitted by you within six Months after their passing, or sooner, if opportunity offers, to Us by One of our Principal Secretaries of State, and Duplicates thereof to Our Commissioners for Trade and Plantations, for their Information; that they be abstracted in the Margents, and accompanied with very full and particular Observations upon each of them, that is to say, whether the same is introductive to a new Law, or does repeal a Law then before in being; and you are also to transmit in the fullest manner the Reasons and Occasion for enacting such Ordinances, together with fair Copies of the Journals of the proceedings of the Council, which you are to require from the Clerk of the said Council. 11. In the Consideration of what may be necessary to be provided for by Law within Our said Province, as created and established by the aforesaid Act, intituled, an Act for making more effectual Provision for the Government of the Province of "Quebec in North America," a Great Variety of important Objects hold themselves forth to the Attention of the Legislative Council. 12. The Establishment of Courts, and a proper Mode of administering Civil and Criminal Justice throughout the whole Extent of Our Province, according to the Principles declared in the said Act "for making more effectual Provision for the "Government thereof," demand the greatest Care and Circumspection; for, as on the one hand it is Our Gracious purpose, conformable to the Spirit and Intention of the said Act of Parliament, that Our Canadian Subjects should have the benefit and use of their own Laws, Usages, and Customs in all Controversies respecting Titles of Land, SESSIONAL PAPER No. 18 and the Tenure, descent, Alienation, Incumbrances, and Settlement of Real Estates, and the distribution of the personal property of Persons dying intestate; so on the other hand, it will be the duty of the Legislative Council to consider well in framing such Ordinances, as may be necessary for the Establishment of Courts of Justice, and for the better Administration of Justice, whether the Laws of England may not be, if not altogether, at least in part the Rule for the decision in all Cases of personal Actions grounded upon Debts, Promises, Contracts, and Agreements, whether of a Mercantile or other Nature; and also of Wrongs proper to be compensated in damages; and more especially where Our natural-born Subjects of Great Britain, Ireland, or Our other Plantations residing at Quebec, or who may resort thither, or have Credits, or Property within the same, may happen to be either Plaintiff or defendant in any civil Suit of such a nature.1 13. Security to personal Liberty is a fundamental Principle of Justice in all free Governments, and the making due provision for that purpose is an object the Legislature of Quebec ought never to lose Sight of; nor can they follow a better Example than that, which the Common Law of this Kingdom hath set in the Provision made for a Writ of Habeas Corpus, which is the Right of every British Subject in this Kingdom. 14. With Regard to the Nature and number of the Courts of Justice, which it may be proper to establish, either for the whole Province at large, or separately for its dependencies, and the times and places for holding the said Courts, no certain Rule can be laid down in a Case, in which the Judgement must in many Respects at least be altogether guided by Circumstances of local Convenience and Consideration. 15. In General it may be proper, that there should be a Superior or Supreme Court of criminal Justice and Jurisdiction for the Cognizance of all Pleas of the Crown, and for the Trial of all manner of Offences whatsoever, to be held before the Chief Justice for the time being at such times and places, as shall be most convenient for the due and speedy Administration of Justice, and the preventing long Imprisonments; the said Court to be called and known by the name of the Court of King's Bench; That, for the more orderly establishment and Regulation of Courts of Civil Jurisdiction, the Province of Quebec, as limited and bounded by the aforesaid Act of Parliament "for making more effectual Provision for the Government of the Province "of Quebec in North America," be divided into two Districts by the names of Quebec and Montreal, each district to be limited and bounded in such manner, as shall be thought best adapted to the Object of the Jurisdiction to be established therein; That there be established in each of the said Districts a Court, of Common pleas to be held at such times and places, as shall be judged most convenient, and to have full power, Jurisdiction and Authority to hear and determine all Civil Suits and Actions cognizable by the Court of Common Pleas in Westminster Hall, according to the Rules prescribed by the said Act of Parliament "for making more effectual Provision for the Govern"ment of the Province of Quebec in North America," and according to such Laws and Ordinances, as shall from time to time be enacted by the Legislature of the said Province in manner therein directed; That there be three Judges in each of the said Courts of Common Pleas, that is to say, two of Our natural-born Subjects of Great Britain, Ireland, or Our other Plantations, and one Canadian; and also one Sheriff appointed for each district; That besides the foregoing Courts of Criminal and Civil Jurisdiction for the Province at large, there be also an Inferior Court of Criminal 1 This and the following article with reference to the writ of Habeas Corpus, form the first step in that piecemeal process of impairing the complete restoration of the French Canadian civil law granted by the Quebec Act, particularly the 8th clause of it. As may be seen from several subsequent documents, this was the basis of continued conflict in the Council and in the Courts until 1791, when the controversy took another turn. In a document in the Dartmouth Papers, endorsed "Extract from the Instructions to the Governor of Quebec, so far as relates to the Establishment of Courts of Law," this clause appears in the following form:- "The Legislative Council are to frame the Ordinances for the Establishment of Courts of Justice, and for the administration of Justice, so as that the Laws of England, if not altogether, may be as nearly as possible the Rule of Decision in all personal Actions, grounded upon Debts, Contracts, &c. and especially where the natural-born subjects are concerned." M. 385, p. 485. 2 Yet when this was most vigorously contended for at the passing of the Quebec Act it was absolutely denied by the Government. In the document referred to in the previous note, this article reads as follows, -"Security to personal Liberty to be provided for: And the Writ of Habeas Corpus, as a part of the criminal Law, to be adopted in its full Extent." M 385, p. 485. |