SESSIONAL PAPER No. 18

From this state of the population during the period of 18 years, your Lordship may form an idea how much the Canadians will increase in 30 years, and there will not be wanting men to cultivate the Lands which remain to be conceded, or to carry on the Trade of the Colony in all its different branches.

Vly The Committee conceive it to be their duty not to omit the suggestion, that the Province remains to this day, without a Court of Exchequer for the regular Estreat of His Majesty's casual Revenue of fines and forfeitures in the other Courts; an object to which it becomes the Legislature to attend not only in fidelity and gratitude to the Crown, but in Justice to the Colony, the King out of His Royal goodness having applied his whole Revenue, Territorial & Casual to the support of the Government of the Province (5)

(5) On the Question whether this Clause stand?

For it Mr. Finlay

Against it Mr. Mabane.

doubted, by Mr. St. Ours.

Mr. Mabane offers what follows. "There is certainly no court of exchequer in "the Province; but to this day there has been no Inconveniency felt from the want of it. "The Sheriff and Clerks of the Court accounting every Six months to the Receiver "General for the casual Revenue.

"With regard to the Territorial Revenue if it has not been fully revised it has not "arisen from any deficiency of Law or authority in the Courts of Common pleas, but "from the Indulgence of Government"

VI The Committee on the other hand, cannot avoid the Remark, that tho' the present Ordinances enact what the King has been graciously pleased to recommend, Appeals for the security of the property of the subject in Civil causes, a Clause is still wanting to authorize what His Majesty has enjoined, that appeals be also allowed, even in prosecutions in His Majesty's own name for any fine that shall exceed the Sum of One Hundred Pounds Sterling

And as it is on the Crown Side of the Kings Bench Court that inferior Jurisdictions are kept within the bounds of their Authority, and Magistrates held to their duty by the Writs of QUO WARRANTO and Mandamus. &c., and the liberty of the subject protected, and it should neither be in the Power of that Court, to adjourn nor prolong the Sessions at pleasure, it appears to the Committee to be requisite, that its terms and return days be fixed and ascertained.

On the Civil Judicature

the Committee beg leave to observe,

Is That it is in their opinion much to be regretted, that the Common Pleas, a Court so respectable as that tribunal ought to be, to which causes of the highest Consequence are entrusted, holding the right of deciding in the first instance upon every subject of property, in Actions Real, Personal, & mixed to an indefinite value, should be charged with, and disparaged by a perpetual attention to the petty litigations under the value of Ten Pounds.

The Remedy seems to be a Law, enabling Your Excellency by a Commission to divide the Province into Precincts or Circles, consisting of two or three contiguous Parishes; and to consign the cognizance of small causes not to Justices of the Peace (who by such a mistaken Policy, will be drawn aside from their proper duty in support of the Government & the conservation of the public tranquility) but to two or three Gentlemen of the Precinct or Circle, proceeding summarily, according to good conscience, in a weekly Court of Requests, nearly similar to those lately established in different Districts and Towns in England; and by dispensing Justice in a quick, cheap and easy manner, to a convenient neighbourhood, releiving the poor, and promoting that Industry which prevents vice and disorder, and is of the greatest utility to the common weal.

But if for want of Public Spirit this measure should not be practicable in the old settled parts of the Province, (which they are not willing to believe) the Committee humbly conceive some such Law, must be indispensably necessary for the new Districts, which, as consisting of English Loyalists & being very remote, cannot be left without such Courts for the Adjudication of small causes, as well as what they have also been

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6-7 EDWARD VII., A. 1907

accustomed to, an inferior Court of Common Pleas for the trial of Actions to Twenty, Thirty, or Forty Pounds, according to the Course of the Common Law. (6)

The draft of an Ordinance for the trial of small causes is before the Committee.1 (6) On the Question whether this Clause stand?

For it-Mr. Finlay.

Mr. St. Ours doubts on the Clause.

Mr. Mabane offers the following remarks, to be inserted—

"With regard to the Courts of Common Pleas having been charged with the "determination of small Causes begs leave to observe to Your Lordship that at the "Establishment of Civil Government in 1764 in order to prevent the necessity of the Inhabitants repairing from the distant parts of the District, there was an Ordinance passed authorising the Justices of the Peace to take cognizance of debts & under "the Sum of Ten Pounds. Many abuses arose from this Institution, and in the year "1770 an Ordinance of the Governor & Council was passed taking away the Juris"diction from the Justices of the Peace, and in order to prevent the Inconveniences "resulting from the Change, required the Judges of the Court of Common Pleas to make a Circuit twice a year in their different Districts for which they have no allowance of "any kind, and established a Weekly Court in the Towns of Quebec and Montreal "where one of them was obliged to be present & determine Causes under the sum of "Ten Pounds, and in these Causes very frequently points of Law of great Intricacy "are involved; but if any method can be fallen upon to free the Judges of the Common "Pleas from this burden without detriment to the Public, Mr. Mabane as one of them "would be very glad of it; but it is with regret that he does not think the remedy "proposed however well intentioned, and However ingenious applicable to the circum"stances of the Province."

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II' If it should be the choice of the Legislature to continue the Course of the Court of Common pleas, in those parts of the Districts that remain, after the new Counties are formed, as it stands at present regulated, by re-enacting the Substance of the Ordinance of 1785, which is nearly expiring, the Committee humbly submit whether (among other amendments) it will not be very necessary so far to alter both Ordinances, as to vest the Provincial Court of Appeals in future, with Authority to adjust the matter of the Security to be given by Appellants for staying Execution of the Judgment in the Court below. (7)

(7) On the Question, whether this Clause stand?

For it Mr. Finlay

Mr. Mabane observed that, it is his opinion the Court of Appeals have this Authority at present, and Alledges that the Court has exerted it, in more cases than one. Mr. St Ours is in Doubt on this clause.

III's Upon due Consideration of the Copies of His Majesty's Twelfth and Fourteenth Instructions, by your Lordship communicated to the Council (and heretofore by General Haldimand on the 30th of August 1781) the Committee are further of opinion, that no reasonable objection will lay against the Trial by Jury in any personal Action, if it be at the same time enacted for the security of His Majesty's Canadian Subjects, that they shall have the benefit and use of their own Laws, Usages and Customs, in all Controversies respecting titles of Land, and the Tenure, Descent, Alienation, Incumbrances, and Settlement of Real Estates, and the distribution of Personal Property of Persons dying Intestate, according to the full intent of the said Statute of the 14th year of His Majesty's Reign. (8)

(8) On the Question whether this Clause Stand?

For it, Mr. Finlay

Against it Mr. Mabane

Mr. St. Ours. (

1 This is the draught of an ordinance summarized in Finlay's note to the Bill of the Chief Justice for the better administration of justice &c. See p. 576.

2 Referring to the Ordinance of Sept. 17th, 1764. See p. 149.

SESSIONAL PAPER No. 18

They offer a note for Entry, and desire that certain memorandums of the Council in 1785, may accompany the Report :-and a List of the Jurors for Quebec. The Note. "With regard to the Article of the proposed Report relative to the "trial by Jury, Mr. Mabane & Mr. St. Ours cannot agree to it: however as the "Ordinance expires with the approaching sessions, and therefore must be renewed, or "another substituted in its place, they only beg leave to annex for his Lordships infor"mation a Copy of Mr. Mabane's dissent from the Register of the Council and an "authenticated list of the Jurors in the town and Banlieu of Quebec, which supports "the objection to the Trial by Jury in civil causes

IV As a Court of Chancery is essentially necessary in the English system to perfect the Administration of Justice in Civil causes, and the exercise of this Trust, as well as that for those branches of the prerogative Courts which relate to Marriages and the probate of Wills, and the granting letters of Administration, are vested in Your Lordship, the Committee presume no farther, than barely to Suggest, that the Subordinate Officers for the first of these Courts remain to be appointed.

And that the business of the Common Pleas, well entitles its Judges to an exoneration from the burden of the Prerogative Court," if the duties of both in the same persons were compatible; which, to say no more, is very questionable, if it is the right of the Former, to issue prohibitions to the Latter, in cases where its powers are extended beyond its Authority; evinced as it is, in the constant practice of the Common Bench in Westminster Hall (9)

(9) On the Question whether this Clause shall stand?

MessTM Mabane & St. Ours desire the following entry & that the Papers referr'd to in it may accompany the Report

"With regard to the Court of Chauncery Mr. Mabane and Mr. St. Ours, beg leave "to anex for the information of your Lordship a Paper in the French Language wrote 'by Mr Panet one of the Judges of the Court of Common Pleas.*

"Mr. Mabane takes the liberty to observe that the Power which the French Law gives the Judges to interrogate the parties upon Oath, Sur faits et Articles pertinent "to the cause in dispute, renders the Court of Chancery in a great measure unnecessary."

"This Power is much regretted by Judge Blackstone not to be inherent in the "Courts of Justice in England, and has been unwarily taken away in Commercial causes by an Article of the Ordinance which establishes the proof of Facts in Com"mercial matters to be according to the rules of Evidence in the English Law, tho' the "power still remains with regard to other causes; This instance of itself evinces the "great delicacy and deliberation with which changes should be made in the municipal "Law of any Country, for with the best Intention in the world the Legislators (especially in a conquer'd Country) may do a great deal of hurt instead of good, but this "may be remedied in restoring the Power when the Ordinance shall be renewed"

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"With regard to that part of the Report which relates to the Prerogative Court, "Mr. Mabane and Mr. St. Ours beg leave to annex a Paper wrote by Mr. Panet for the "information of His Lordship"

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"Mr. Mabane did not consider the Commission from Your Lordship as necessary; "but as by His Majesty's Commission to Your Lordship, the granting Letters of Ad"ministration is reserved to the Governor of the Province--He acted under it with great chearfulness as a proof of Your Lordships Confidence in Him, but never con"ceived that the English words in it, can make any alteration in the Law as Estab"lished by the Statute of the 14th of His present Majesty," and adds, that the Judges of

1 Given below; see p. 602.

2 Given below; see p. 606.

3 Various papers and reports with reference to the Jurisdiction of the Prerogative Court will be found in Q 56-3, p. 773.

For Mr. Panet's paper on this subject see below, pp. 607 & 609.

5 For this paper by Mr. Panet see below, pp. 608 & 611.

6 The Quebec Act.

6-7 EDWARD VII., A. 1907 "the Court of Common Pleas, have no Salary nor have ever taken one farthing of fees "from the People, for the Business in the prerogative Court.

Signed by order of the Committee

Wm. Smith. Chairman.

Quebec 11th January 1787.

All which is most humbly submitted, by Your Lordships most obed' and most humble Servants

Quebec

11th Jan 1787

Hugh Finlay

A. Mabane.
P. R. St. Ours.

THE MEMORANDUM OF COUNCIL REFERRED TO IN NOTE 8.1

8th of April 1785.

Read Article 27 of the projected Ordinance which was unanimously rejected

Mr. Mabane propos'd an additional Article to the following purpose. "Provided "always and it is hereby enacted and ordained, That nothing in this Ordinance or any "Article thereof can, or ought to be construed to have introduced any part of the English Law, which is not expressly mentioned; or to have made any deviation from "the Law and Usage of the Province, which is not clearly and expressly mentioned by "the words, any Law, Usage or custom to the contrary notwithstanding."

9th April 1785.

"Mr. Mabane agreeable to the notice by him given yesterday moved as follows viz. "Tho' from everything which has appeared in this Sessions I am more than ever convinced that neither the circumstances of the Province nor any urgent necessity requires an innovation from the Municipal law of the Country of so great importance as the admission of the Trial by Jury in Civil causes-Yet as the Council has voted that it should be adopted under restrictions, I think it is the duty of every Member to suggest the mode which appears to him most conducive to the good or the least hurtful in his idea to the interests of the people-I therefore propose that in place of the 10th Article reported by the Committee and rejected by the Council now standing the 9th in the Ordinance, one to the following purpose should be substituted. viz'.

"That it be enacted any Law, Usage or Custom to the contrary notwithstanding, "that in Actions or Suits at Law, in the Courts of Common Pleas, grounded on debts, promises, Contracts and Agreements of a Mercantile nature between Merchant and "Merchant Trader and Trader, and in all actions and Suits where Compensation is to "be made for personal wrongs-The Tryal by Jury may be had to establish the matter "of fact in the first cause, and to assess the amount of Damages in the other, Provided "nevertherless That it is clearly understood that in Actions or Suits at Law between persons who are not natives of the province, and in Actions or Suits between persons "who are natives of the Province The tryal by Jury shall be had at the desire of either "of the Parties and that in such Actions and Causes as above where only one of the "parties shall be a native, the tryal by Jury is not to be had except at the desire of "both parties, and in all causes or Suits between persons not natives of the Province "the Jury shall be composed of persons who are not Natives of the Province, and in all "Causes or Suits between Natives The Jury shall be composed of Natives only, and in "all Causes and Suits where one of the Parties may be a Native and the other not a

1 Canadian Archives, Q 27-1, p. 209. This is the memorandum referred to in note 8 of the foregoing report, (p. 601). It consists of extracts from the journals of the Legislative Council relating to the passing of an Ordinance to regulate the proceedings in the courts of civil judicature, &c. (see p. 529). The journals covering this period are given in Q 26-1, pp. 256-286.

SESSIONAL PAPER No. 18.

"Native the Jury shall be composed one half of Natives and the other half of persons "not Natives."

Resolved that the Question be put, whether the proposition of Mr. Mabane shall be adopted or not and being put, the voices standing 6 Ayes and 11 Noes voted and Resolved in the Negative.

Copy Articles 9th and 10th referred to as proposed by the Committee and rejected by the Council.

Art 9th. And be it ordained and enacted That in all Causes, Suits, and Actions to be prosecuted in any of His Majesty's Courts of Common pleas, or removed in Appeal therefrom, which shall be grounded upon Debts, promises, Contracts and Agreements of a Mercantile Nature, the same shall be heard, considered and adjudged According to the Ordinance of this Province in that respect particularly provided, and the Commercial and Common Law of England save and except as hereinafter providedArt. 10th. That all and every person having Suits at Law and Actions in any of the said Courts of Common pleas grounded on debts, promises, contracts and agreements whether of a Mercantile or other Nature, and also of wrongs proper to be compensated in damages may at the option & choice of either party have and obtain the trial and Verdict of a Jury, as well for the Assessment of Damages on personal wrongs committed as the determination of matters of fact to be established in any such cause, and that the Verdict of such Jury shall be binding upon the parties in every respect and so far as the same by the Laws of England, the Verdict of a Jury legally could or ought to be of Validity force and Effect-Provided always that the Agreement of nine of the twelve Jurors who shall compose such Jury shall be sufficient and effectual to return a Verdict and that the same so made and returned shall be held as legal and effectual to every intent and purpose, in as much as if the whole twelve Jurors had agreed therein. And the Clerk of the Court shall set down the names of the Jurors on the Register of the Court in every cause where Verdicts may be returned as abovesaid—Provided Also that in all such Causes and Actions that may be between His Majesty's natural born Subjects of Great Britain, Ireland or the Plantations and Provinces in America, the Juries in such causes shall be composed of such natural born subjects as abovesaid and in All Causes and Actions between His Majestys Canadian or new Subjects, the Jury shall be composed of an equal number of each, if such be required by either of the parties, in any of the above mentioned instances"

11th April 1785.

Resolved that the Question be put upon Mr. Mabane's proposition of Yesterday, "Whether the Article by him proposed shall make part of the Ordinance or not." The Question being put, and the Voices standing 8 Ayes and 9 Noes voted and resolved in the negative. Settled the title of the Ordinance to be as follows viz" 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."

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13th April 1785.

Mr. Mabane presented and read in English and French his reasons of dissent from the Resolutions of the Council upon the Ordinance for regulating the proceedings in the Courts of Civil Judicature & as follows viz.

"Having during the Course of the Sessions declared myself averse to Innovations "in general in the present circumstances of the Province, I think it my duty now to enter "upon the Journals my reasons of dissent from a resolution of the Council whereby the "trial by Jury in Civil causes is adopted under restrictions."

The ground work of this material change in the Municipal Laws of Canada is said to be the 12th and 16th Articles of the Kings Instructions, the first of which was sent to His Excellency Governor Carleton in the year 1774 or 5 soon after the Act of Par

1 See pp. 474-5. The instructions given to Haldimand in 1778 simply continued those given to Carleton in 1775 (see p. 419) with the addition of a few new items, chiefly contained in article 16. See p. 475.