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O N D O N, MDCCLXXIV. i> c « 'o* J t\ • Ci G O N T E N T Si JpXHE NT of the reference /. i , 2, 3 Principles of law y 4> 5> 6 Political and commercial Jiate of the pro* 'uince under the French and Briiijh go- "uernments to which the principles are applicable, 8 to 48 What authority ii necejjary to ejlablijh the new lawSi a^ Whether a provincial ajfembly is advifeable^ and whether his Majejiy, by his own autho- rity, can revoke the commiljion of the chief jujiice and judges, and alter the courts of jujiice once erecied, according to the courjp of the law of England, 49 to c6 State of the courts of judicature, andprops^ Jitions relating thereto, ^y /o 88 Common law of the province, and propoft* tions refpeSfing a middle fyjl em, 88/^114 Concerning the revenue, andhisMajeJiysper^ fonal rights, and regulations rejpeding the fame, 114/5 119 Nature of the religious efiahlijhments in the colony: the operation of the treaty of Paris and capitulations, the ecclefaftical laws * i\- Co N T E N' "i^ gi^ taws of France, the articles of the tro'ieSi of the board of trade, and piopoXnsof adjutor clergy, and monaJlicfoundatlL ^nd reh^ton of the chJchif E„S. Ho to 24.i -APPENDIX, No.X. Letter from the advocate^general tothe and Mr. Be Grey, May luh iy6c, con^ ':C^rn,ngthecafeoftheeJiates rftheje. 't^^:^^^'^^^^^^^hdeea^ M,IL Proofs and extraSts relating to the }■ ttles of the faid order, and the nature of their conjittution, 26 no m French laws of police wnich may be proper to be adopted, ^g^ .q^commeice. ^^/e them p%S upon ^/JT *''V'?"' '"" ««« ,p,lofu,e p. 38, read prin^eJ^cMon'p "1 '^ P;»5.> printed r*:J penitus. p. ,» . . V undertaken W .^iJ' '^* "** A ?«"""». a»o. A/, in the manner ?f«l J^tC/' ^" 1"^? f"'' y""' M.jefty. p. as?, order, dt't /A« fflM^^nl^'^; P' *30- *»A for that purpof,. ' K TO THE N G's MOST EXCELLENT MAJESTY. May' it pleafe your Majefty, TT7HEREAS your Majefty was V V pleafed, by your order in council of the 14th of June, 1771, todired that Several reports and papers relative to the laws and courts of judicature of ^ehec, and the prefent defeaive mode of govern- ment in that province, Jhould be referred to yourMajeJifs advocate, attorney, and foli- citor-general to cojfder the fame i to take to our afpjlance other perfons, as we Jhall think fit, for the purpofe of giving information, and to prepare a general plan of civil and B criminal - « ,> - i * 4-1 r 2 J ermma! law for the /aid province :' and*, by a farther order, dated 31.11 July, 1772,. reciting the former order, your Majeftyr was pleafed to dired, t/iat the advocate^, attorney, and folicitor-general Jhcdd make a Separate report thereupon to your Majejiy in council, with all convenient /peed. In mofl humble and dutiful obedience to your Majefty's commands, I have the ho^ nour to report, that I have perufed and confiderc' attentively the papers referred, and have obtained fevcral very ufeful in- formations. "'It is with the utmoft diffidence I now venture to lay before your Majefty m- council the refult of the refledions v^hich- have arifen in my mind upon this fubjedtr perplexed as it is, and fo very extenfive, both In its matter and in its confequences! to your Majeily, and your government, it would be full of danger to lay down any opinions (not only of ,what the law is, at large, but what the law ought to be; which. [ 3 ) whicli is the great queftion referred) too pofitively, in relation to a country Soren mote from home, and to a people, their laws, and cuftoms, with which ypyr, Ma^ jelly's fubjeds here are fo little acquainted • I cannot, therefore, offer thefe thoughts otherwife than merely problematic^llyj^ and as in deliberation, with fubmiffion, tp fuperior wifdomj and I Khali readily aqr* cede to any better reafonings which may be fet forth in any other report of the law fervants of yourMajefty, and in which w^ might unite. It is obfervable, that the feveral reports hitherto made and referred to us, do not agree in opinion j but fo far as they do not oppofe each other in matter of fad:^ fo far we may venture to try to frame fom^ fort of opinion on the ground of thofe. fadls, which are laid before us. Notwithflanding that there eve/Xf been, among men of refledion, a great va- *lai4*^ ■ B 2 r'lety •[ 4 J ricty of fcutlments upon the fubjed of ge-* ncral legiflation, and that fuch fubjea^ require the life of a Plato or a Montcfquieu to difcufs^ and the experience of ages to confirm them, it feems to be nearly cer- tain, upon the ordinary experience of mankind (an obfervation very neceffary and applicable to the progreffive ftate of Canada) that wants make manners, and that manners make laws, interpret and controul them in every age and in every government: on the other hand, that laws, in a certain degree, can change the manners of a people, is not to be doubted ; bccaufe their manner? alter with the in- creafe and circulation of property, on which the laws have a vifible influence: that in a ftate of fociety, where the numbers are few, the wants fimple, and the property free from the intricacies of commerce, the laws of that fociety alfoare few and fimple. The government of a people in fuch a ftate re- prefentsthe government of a private family. It is therefore impoffible to form a general code [ S ] code of civil and crimtrial law for any peo- ple, without its being fubjedt to change in the progrefs of civil fociety ; nor can it be efFedive without its being adapted to the immediate wants of the people, and i.ot inconfiftent with the tone of their man- ners: but it is clearly the intereft of the governing power, for its own prefervation, to watch every change of circumftz^nces, to follow expediencies as they arife, and to model its laws according to the pofition of th€ fubjea, and the views of that leading policy which is the wifdom of ftates, and the fpirit of legiflation. Father Charlevoix*, in fpealdng of the 3dminiftration of juftice in Canada, in 1663, bewails the time when arbitrations were no longer deciftvey diSiatedbygood fenfe and the laws of nature ; that it was ajin^ gular refeaiony and humbling for mankind ^ that the precautions which a wife and great sj^oii Lib. viii. p. 370, 371. 33 prince [6] prince thought profer to take to banijh fraud, and eftablifijuftice, by a new code fo¥ the colony, were the encreafe of the one and the weakejiing of the c^her. The truth is, the colony was changed, and the law^ followed, - ' .Urviatii /In forming the preliminary propofi^ tions, in deliberation, to ferve as a balls of a code of laws for the province cf Canada, It muft be taken for granted, as a firft and dear pofitipn, that the great and fudden change of the political and relative eircum^ ftances of the country of Canada make$ a farther change of ics laws abfolutely ne- fceflkfy. It is not 2in ideal necejjity Yfhkh i'ttie^, ttor the hoipe g£ attammg any per^ feBim which may exi/l in fpeculation only, but it is a neceffity ia fad:. The kws and people of Canada are already changed; nor can a previous queftion * be fuppofed 0f the political expediency. Af^er the re- '^"^ ■ • - '[ ' f'^^Pm of the attorney. genei-al3i m..nh.:: "^^'"'^ prefentatioDs M prefentations of the board of trade in the ftrongeft terms, the reports of the governor, chief jufticc, attorney-general.of the pro- vince, andcorrefpondence with the fecretary 'of ftate, annexed in the papers referred ; and after your Majefty's order in council , ■ ■ -f. liath declared the neceffity of a new fyftem, by fetting forth, that the prefent mode of government in the proving- is dcfeBive.^ and commanding your Majejtys law fer^ vants to prepare a general code of law for the fame, and to call upon all perfons we may think ft for information ; fuch an ample refert:nce precludes ^lYhxtvity and refer ve, .and lays your Majeay's law fervants, in my conception, under an indifpenfxble obligation, however painful,, to enter into every poffible coniSderation upon a large icale, and to bring the whole fubjedl in one proJpeSl before your Majejiy, that your Ma- jefty, in your great wifdom, may weigh upon the moft extenfive informations the grounds of forae probable fyftem. This latitnde is the more neceiTary^ becaufe, if J3 4 . :C4 3 adopted ui,.„a„,„.iftake„ „otio„saf^« Majefly s government will increafe beyZ the power of a remedy. -'^^^^ eafily follow. '"'°"'°S? "'" To know what Canada wants, it is very P-per to confider the relation in whichT once flood to Fran^^ j , ' which it '""'"• ^"'' the relation in whh « now ftands with refped to Great Bnta,„ This colony was fettled -thv,ews of policy and commerce, by a religion ^r ^' "P°^ P^^^^^^e of religion, and fupnorter? ;« r • deearlvM • ? oppofition to inc early claims of the VirltifL v^4 iiic uritiih crown, a is iV was natural to a t^T. "^n, as it upon m.i-r ^ "'^^^f^^y government, T ■ Ty ^''""''P^''' O^ a view of ^^e civil efbbiiiLment of this coW^ infancy 1 9 1 infancy and progrefs, WhicH^aj^^e^^' a perufal of the [Freucli commiffions ♦, now thing can be more fimple, or formed vnth greater latitude than the general and'in^ definite powers granted to the French offi- cers, to whom it was entrufted. The whole government, in its original ftate, feems to have been left to the influence which military force t has over the bodies, and which a fyftem of religion, dazzling in its ceremonies, and operating forcibly on the imagination, has naturally over the minds of men J, whofe employments and wants leave little time for refledion. The common law or cuftom of Paris, was to be their rule, by the edid of Lewis XIV. t Hiftoire philofophique « politique des cta- aeux Indes, torn, vi, p. jao Tous le. colons y dev.i.n, fa« exception nne To To thU general fyftem have- been addea .a number of royal e..as, regulation, of th&penor council, ordinances of intend- 2^' &=: wluch forn, the law peculiar to ti« province *; and although it appear. T: *' '"*°"'^ °f Canadian la^cr" ^ many part, of the lawof the cufton. #f «s haye not at any time been exe- <=wedmthecdony;7,ttheftateofthe -oionyhasbeentheonly^afonofit. -nd that no cafes have yet arifen as objea; of thofe parts of .he law of the cuftom of ^"" which have not been executed, ,,, In the condition defcribed, the cdony Of Canada at the peace of Verfailles +. was ceded to the crown of Great Britain. 'La cofi.„me de Paris modifiec par d« con, W..„^ ,o.ai„ .or.a ,, .,, J. ,/ ^ t Article IV. Sa M fr« rk.%- ♦r««r ^1 " chrctienne cede *t tranfporte le tout au dit rn? «.► ^ i OrW« n - ' ^' * ^* couronne de Ja Orandc Brctagne. et cela de Ja „,ani^re et dans ll •!3d abfolutely. I ri ] flibfolutely, with no reftriaion but fuch ai regarded the prefervatidn of private pro^ pert^, or had a view to certain modes of religious worihip, or rituals, in cafe they ^er5 permitted by the laws of the coun- try, which now became fovereign. One hundred thoufand fubjeds in this ample manner (to ufe the words of the treaty) transferred from one fort of government to anothw, totally different in manners, languages, laws, and religion, muft necef- fnrily fuffer a violent alteration. It is very obfervable, that in the XLIId article of the capitulation for Montreal and Canada, the demand was, that the Canadians Jhall be governed according to the cuftom of Far is, and the laws and ufages ejlahlijhed for that country. This is nei-. ther granted nor refufed, but referi^ed. The anfwer is, « they become your Majejifs fubjeSls, The confequence is, their laws are liable to be changed. But until the fyftem of laws of the ancient inhabitants ihould be fif^.reMed by tfce authority of the ne«- fovere.g„ power, their old fyftem was un- Werftood by many to be in full force upon them. Th«is,aiddown,a,.;«,e/?„,L^ «»««»«, e^ tAe common law, by Mr. Yorke ""k . ;;• ^ ^^^' '" ^^' ^«P0«; by v^h^h I fuppofe ,hey meant the law of na„ons. That doftrine is laid down ^. ,/„ common la^ by Lord Coke, in Calvin'. cale. But the common law of England Aasnothingtodowiththequeftionjitis a matter of the jus gentium, and it de. pends upon the filence and prefumed in, du gence of a new fovereign power, as well as upon any afts whereby the fove- re.gn's pleafure is made publicly known. There ,» no occafion to cite paflages of Gronus * or Puffendorff, or any other German or Dutch writers, to ihew their opi- n.on of what is pojible for the fovcnm fomr to permit by not abrogating. * Report of the attorney-genml. O:' But t '3 i . But much more difficulty occurred (ind It was increafed by the fteps taken by the Bri^ tifti government) upon the queftion, whether the laws, civil and criminal^ of the ancient inhabitants, became binding upon the perfons and properties of Britijh fubjeBs who came' over to fettle in Canada after the conquefi ? who have been thought to carry out with them, as it has been exprefled by fome- body, all the laws of England upon their backs i and who, in a more particular' manner, claimed the benefit of your Ma- jefty's proclamation, fo far as it was un- derftood to be binding, as declarative of the general laws of England, and of your Majefty's right in confequence, with the advice of your Majefty's privy-council, to make laws for any conquered country ceded to the crown, exercifcd- by your Majefty in this inftance, in the fame ana- logy as in royal grants or charters, here- tofore of any unfettled lands and terri- tories belonging to the crown, acquired by occupancy of the fubjed:; the conditions oS which grants h»ve been the refiilt of the royal pleafure, having regarf to the fundamental laws of England. ,„ , ^,^ i r-f '• The faa appears to be, that a ]r^ mationhas l^en iffued by your Majefty, with the advice of your privy-council, {a long ago as the 7th of Oaober 1763; fet- tiogforth,that m the interim, until a frovin^ cial ag'embly could be called, allperjons inha^ biting the /aid colony may confide in your Majefiy's royal proteSlion for the enjoyment of the benefit of the laws of the realm of England i and for that purpofe your Majefiy had given power to the governors ofthefaid colony, to ereSi, with the advice of their councils, courts of judicature and public jufiice. As the commiffion * of the governor of Quebec, is almoft in every article a dire^,„, TT-/'^' «/ go^er„me«> ^hich /oUov,ed Z „ "Of "«~«luce abfoluteljr ,be law of England, in the whole of iu fyften,, *y general words; becaufe it might pof- fibly bear fome fort of difti„aio„. a, taken above, between cafes civil and cnmmal: and it might alfo bear the diftinaion of new, and the old fubjeas, ^-ho were the emigrant, from home; the former, as governable by their own an- e.ent ufages; the latter, a, bearing the pnv.leges of Engliftmen upon their backs. It m,ght be faid, the proclamation was tneant for the new fettlers, and for the new grantees, and related to t/,e yet unoccupied lands of the province, and extended no larthen But thefe diftinaions were under a far- ther diffi«vlty from other afts of govern- ^ ment ; [ tS ] ment: the adual cftafjli/hmcnt of the courts of jufl'ce, of the king's bench, and fommon-pleas, with cr mmiifions and titlei fijliular to thofe of the judges and courts of Weftminfter Hall, and with exprefs inftruaions to follow the Englilh laws and cuftoms, did of neceflity, and ipfo faao, introduce all the modes of judicial proceeding according to the laws of Eng- land ; although with this modification, fo far as they could be put in fraSlice under fuch circumjiances \ and did alfo ftrongly tend to introduce gradually the whole fyftem of Englilh laws, and did occafion aftrong prefumption in the minds of all men, that it was then adiually introduced, or meant to be introduced as foon as poiTible. The two ordinances of the 17th of September 1764, and of 6th of November J 764, tranfmitted home to the king iii council, and never difallowedy are very Xi> :T2g in favour of this idea, although the firft i «9 } firft contains fomc faving clanfes, vi/. that the judges in the court of common- pie as are to determine agreeably to eqi, ity, having regard neverthelefs to the laws of England, as far as the circumjiances and prefentftu- ation nf things will admit, until fuch time ai proper ordinances for the information of the people can be ejiablijhed by the governor and council, agreeable to the laws of Ertg-^ land, That tenures in reJpeSi to grants prior to the cejjion by treaty, and the rights of inheritance as praSiifed before that period^ Jhall remain the fame till the i oth Auguft 1765, unlefs altered by fome declared and pojitive law, with a falvo of his majejly*s rights. The confequence after the expir- ation of this date is obvious, that the rights of inheritance and tenures would be changed to the laws of l^ngland, fo fat this ordinance and declaration could as legally change them. With refped to the chief juftice, as a judge of appeal, the difficulty put upon C 2 him Ill [ 20 J him by his commiffion, to decide by tire» laws of England, was very great ; and if Gould only be avoided by his confidering himfelf as a judge in the fecond inftanc^ to examine the decifions of the inferior court, by the fame rules as they formed their judgments; agrfeeably to the latitude exprefleS. It is to be obferved, that the chief juftice of the king's bench has no authority in hife commiffion to ad: as a, judge of appeal, but he derives it only from the ordinance of the governor, of the 17th September 1764. It is obfervable, that the governor is limited to the injiruc^ tions annexed to his commiffion, and to fuck asjhall be hereafter given him under your Majejifsftgnet andftgn manual, or by order of council, and conformable to fuch reafon-^ able laws and Jlatutes as jhall be made and agreed upon by him, with the advice and <^^nfent of the faid council and affiembly. The form of French government (fay thc^ lords commiffioners of trade, in their re- port t 21 ) J jport to the coni^mittce of oomil, j^ij loth, 1769 *), t/i(,ug/i mt entirely abolijhei fy tbofi royal declar cations , ipas 'thus ir^ m^^ farts materially altered, and ma^e to cor^ re/pond with that form ofgo'vernment wbicb has been ejiablijhed in your Mye^fs i>tier American domimom, ^e reftriaions in the commifm arifing from the t^ ^^ ^ the 2^th Charles lid, prevented the mea^ Jure of an ajfembly being executed in a colony^ 'Where all the principal old inhabitants were tf t^e Romijh religion. Many conjlitutional Services were unprovided for in the commifi fion and injirumons -, and what is worft. of ^11, it hasfmce been found necejfary that Several ordinances, in matters of local regu^ lations, and internal oeconomy, made by the governor and council, Jbould be difallowed by your MajeSly 5 upon this consideration (as the board of trade ftate it), that they were made without a due authority to enaB them. * Vide Inclofure, p. 9. The I .' [ 22 ] The effed which the taking of thi§ ground of a want of due authority, muft have upon the opinion of the inhabitants^ and their refpeft for government, and the queftion of legality, with refped to every other ordinance of the fame fort, is but too obvious. A grand jury in Quebec, with more zeal in the objed, than judg- ment in purfuing the means, prefent the incapacitation of the Romifh religion; to prevent jurors of that religion being im- paneUed in cafes of life and death ; and to controul the meafures taken by the go- vernor, general Murray, in confequence of the legiflative powers lodged together in a military perfon and his council, and which produced the difTatisfkdory ordin- ance of 17th September 1763 ; great part of which has been repealed by another ordinance, as well as many other local re- gulations which have been difallowed by your Majefty in council. The { 23 1 The confufion which exifted under thefe circumftances does exift to this moment. But the whole confufion refults not only from the new legal arrangements, but it feems to be originally exifting as the na- tural effeds of a conqueft.— The confufion is complained of more eafily than it can be remedied. Every new mode is con- fidered as a hardfhip by the old inhabit- ants, and fo might they equally complain of the conqueft. Their minds naturally revert to their ancient ufages, and t&etr wijhes return to their ancient government. It is no reproach to them ; they muft feel as men : and to men every political change which brings an uncertainty of rights, and of the mode of purfuing them, is of ne- ceflity painful. It Is ftated, that in the courts of com- mon-pleas, the proceedings are drawn up in any form or ftyle that the parties think proper; in French or in Englifh, as the attorneys happen to be Canadian or Eng- C 4 liOi f H ] «fl>l>or„ fubjea^j .n ges de toutes les grandeurs, eft facile par le fleuve S. Laurent. & les innombrables rivieres qu'il rfecoit. Ce pays avec quelques foins & du travail pouvoit fournir la France entiere des voiles, des cordages, du bray, du gaudron. by [ 42 ] by which they were ergded for the relief of the people; and iiotwithftanding many other embarrafTments arifing to trade, from the condition of a people, among whom the laws were adminiilered in a fun^- mary way, an4 by perfons wittout leg^I ideas. ^ From all the fads ftated as above, upo^ the evidence of informations, of too higli authority to be doubted, follow two conl fequences; that after certain new regu- lations have been fubmitted to with pa- tience by his Majefty's new Canadia^ fubjeds, for a fpace of thirteen years, though with fome fuch complaining as is natural upon a change of mafters, the foundation which has been laid for an ap- proximation to the manners and govern- ment of the new fovereign country muft either continue to be buil. upon, or other- wife the whole that has been done muft be thrown down, and the Canadians muft be reftored in integrum to all their ancient laws I 43 ] laws and ufages ; a manner of proceeding as inconfiiient with the progreffive ftate of human affairs, as with the policy of any polTible civil government, which cannot revert, but muft neceffarily take up things, and go on the ftate of exifting circum- ftances at the time it intervenes ; for it can as little ftand ftill at any given point, as it can decide that the flood of times ihall go no further. As men move forward, the laws muft move with them, and every conftitution of government upon earth, like the fliores of the fea from the agitation of the element, is dailylofingorgainingfome- thmg on one fide or the other. From all which propofitions there fcem to follow plainly thefe political confe- quences ; that after your Majefty'sprocla- mation, commiffions, and inftruaions, and the eftablifhments of courts of juftice, and feveral ordinances which have been iffued by virtue of that proclamation, it would leflen, not only in the minds of tl^eCana^, dians, t 44 J dians, but of all Europe, the ideas of the dignity, wifdom, and authority, of your MajeAy's government, to undo every thing that has been done : that to reftore the co- lony to its military principles and fpirit, would be in confequence to reftore it to France. The views of the French cabinet are evi- dent, by the acrounts tranfmitted by go- vernor Carlton of the Canadian bom offi- cers who ferved in the laft war, who are in a particular manner cantoned in Touraine *, cind fupported by the French government, with an increafe of pay and all arrears. With refpea to a military fyftcm, no- thing can more efFedually fupprefs a rifing fpirit of commerce, which alone can make the acquifition of Canada of any utility to Great Britain. Commerce grows only to perfedion in an open foil, and in an air that * Vide Col. Carlton's letter to the Earl cf Shel- burn. Dated Nov. 25, 1767. Inclofurc, Appen- dix, No. I. p. 67, 68. IS I 4J ] is free ; it will fcarce bear to be regulated : it Is like the fenfitive plant ; if touched, it ihrinks ; but if prefTed, it perifhes. I chufe rather to fpeak in this figurative manner, than to enter into the detail oftheconfe-. qucnccs and inftances of military powers, fexercifed in this colony at a certain period! It never can be the intereft of any govern- ment, however dcfpotic, to opprefs com- merce; ,c would be like the wild Indian who cuts down the tree, to gather the fruit! Hitherto the province * of Canada has been an eftablifhment only expenfive and burthenfome to the French government. * Hiftoire Philofophique, ibid. p. ^3. Tous" les objet. ne produiibiene au fix en ijl 'Z revenue de deux cen. f • . ^^^' ^ livres. ' "''^'' ^'"^ «"» Ibid. p. 149. Les dcfpcnfcs annuelles du .ou- vcrnmentpourIeC.n.daaprcslVquedex7l n eurent plus de bornes. ^^^' Lcs huit premiers n,;is de I'a„ ,760 couterent ercze millions cn^que cens mille li.,cs. Dcs ccs ^mmes prodigeui. il 6eoit Jc, a la paix quatre viiigt millions. The C 46 J The fur trade was but a fmall objea of at- tention, in proportion to the political views. The great ufe of the colony was offenfively ; as a place of arms, to form the head of a chain of forts, and toharrafs the Britifh co- lonies, and, hy its pofition and communica- tion wi:h the lakes quite down to the Mif- fiffippi, to command the commerce and force of the whole interior of the vaft American continent. A circumftancc which varies the political confiderations and confequences with refpedt to the arrangements of Ca- nada very greatly from the cafe of ]V:inor- ca, to which it has been improperly com- pared, as a rule for the government of it : the relat' ve pofitions are totally different : it might as well be compared to the rock of Gibraltar, or the fort ui an African garrifon. If Canada fhould be recovered by France in a future period, by the mere want ofwif- dom in a Britifh government, and if France or any other power iliuuld obtain but I 47 J but a near equality of force at fea, the con- icqucnce muft prove the conqueft of all our American colonics, or perhaps the eftablifliment of a new independent em- pire, upon a general revolt of all the colo- nies, of which Canada, by its pofition, Would form the head. But now under proper regulations this country may be produdtivc of the greateft commercial ad- vantages to Great Britain. The Weft India illands, and the Eaft Indies are the graves of its beft fcamen; the northern American navigation and its fifheries are the nurfcries of them; and Cnada may become the fource of an ..finite fupp.y to this nation both of men and of na^^al ftores. It is an objea of great confideration to your Majefty's government, that the re ' turns to Great B.itain are all made in raw materwls to be manufaflured here ; an.l that a condderable duty arifes on the rx- Jiorts. T!i! [ 48 J The views therefore of the Britifli go- TCriiment in refped to the political ufes to which it means to make Canada fubfervi- ent, muft dired the fpirit of any code of^ laws, of which it may be judged neceflary to form the outlines upon the grounds of probability. The additions muft be left to time* to experiment, and expediencies, as they fliall arife, and to that Providence which holds the fcale of empires. But the great queftion occurs : By ivhat authority JJmll the laws, necejjary for the go - 'vernment of this colony, be efablified? It is ftated, that doubts have arifen, efpecliiliy after certain decifions, concerning the le- gality of che ordinances ifflied by the governor, with the advice of his council, and without any airembly, jr exceeding his commijjton^. If the ordinances are not legal, then all that has been done by virtue Of them muft be a nullity. Some of them Printed colleclion, p. 25, 96. liavi I 49 ] We al ready. been difallowed for exceeding the bounds of the commifTion, which reftrains the power of the governor and council in matters touching life and limb, and impofing duties; confequently very few allowable ordinances can be made under thofe terms at any timej becaufe few ordinances can be enforced without reftraints upon the perfon, or without af- feaing property by public burthens. If it could be fuppofed for a moment, that the crown has not a right at all times to make fuch ordinances in the perfon of the governor and council, without an alTembly, (as I conceive it has a right, in a conquered country fo circumftanced, and at a certain time to make them) yet I ilhould be inclined to think that aii the or- dinances hitherto made, and not difallowed, are legal ; or that fuch ordinances might have had, at Icaft pro tempore, a validity within the province, until there iliall be an alteration made by fome ad of the whole E united I 50} united Jegiilature of Great Britain, or a^ leaft by order of your Majefty in council, difallowing them. Until fuch ad: or Otder, the cafe may be conceived to be the" fame (the governor being the reprefenta- tive of your Majefty by virtue of his com- miffion) as if your Majefty, at the head of your army in the field, were granting ca- pitulations, or giving orders how to difpofe of the new fubjeds de bene efl-e, for the prefervation of their perfons and properties, for the good of the ftate, which is now in- terefted in them, and for maintaining the peace and permanency of the acquifition : all which I conceive to be powers nccelfa- rily inherent in your Majefty's crown. The mode of making laws for the co- lony of Quebec, and carrying them into' execution, is a fubjedl upon which many perfon§ may differ. The higheft wifdoni only can determine whether it is neceiTary to have the fandion of parliament fr-r a code of laws, which your Majefty of right may . i. 5' ] inay give to this colony in fome other Way. But I humbly apprehend, that an aft of parliament may poffibly fcrve the moft eff^aually to juftify your Majefty'a Teryants, and to fill the minds of the Cana^ dians with greater confidence : it may de* Clare the powers which are inherent in the crown; and by fo doing, it may fupport inftead of diminiihing them. There i. ^ point which deferves the confideration of your Majefty»s fervants moft verfed in the common law of *\,'- realm, whether if your Majefty has by your proclamation, commiffions and in- ftrudions, and the feveral ads done in confeqaence thereof, given to this conquer- ed country any part of the law of England; that law, once fo introduced, be it more or iefs, can be repealed by your MajeHy's authority alone and without the concur- rence of parliament, upon the civil law niaxim, cuius eft condere ejus ejl abrc^ E It I 52 ] It is alfo to be obferved, that gehet'Jl! Murray is faid, upon good authority, to have adually executed his commiffion with refped to convening an aflembly; that the members were aduaily chofe, except at Quebec. So that the expedations of the Canadians have been raifed, and, in their ideas, the honour of government pledged to them for a legiflative body of their own. In cafe an affembly ihall be hereafter called, in confequence of an a^ of parliament, it will efFedually take away from a Canadian affembly all ground for that pretence, fet up by feme aflem- blies in other colonics, of being indepen- dent of a Britifh parliament. If aflemblies fhoulcl be adopted, I can- not omit taking notice of an error in the report and propofitions of the board of trade of the icth July, 1769, page 17. They propofe to admit a number of the new fubjeds into the council. They would enlarge it from twelve members to fifteen, [ 53 J fifteen ; five to be Roman catholic fubjeas, to be exempted from fubfcribing the de- claration againft tranfubftantiation, as now required by the commiffion and inftruc- tions. But it feems to be forgot, that the oaths againft the power of the pope, and m fupport of your Majefty's fupremacy, required by the ftatutes, will exclude the Roman catholics. Alfo the manner of wording the plan of an aflembly, p. 1 8 and 19, meant, as it is faid there, to corrcfpond with the plan of the council, makes the twen- ty^feven members all liable to the oaths of al- legiance, fupremacy, and abjuration, by pro- pofing that they Jhall not be obliged to take any other. The confequence follows, they are then to take thefe oaths ; and fourteen are afterwards required to fubfcribe the teft. Now can a Roman catholic, agreeably to the ftatute of i George I. chap. 1 3, take the oaths which are required to be taken, agree- ably to the commiffion, by the governor and members of the council, aflembly, &Ce viz. That no foreign prelate orferfon hath, or ought E to I 54 J t6 havCf any jurifdiSiiotJt power, fupcnorityt pre-eminence^ or authority^ ecclefiafiical or Jpirituah within this realm f So that this propofition of the board of trade, plainly appears to be inconfiftent with its own views in p. 20, that the ajfembly Jhould ionfift of twenty feveny all indifcrimifiatefy to take the oaths of allegiance, fupremacy^ and abjuration -y 'hat fourteen will he pro^ tejiantsy viz* who Jhall take the teji a5i : and the thirteen who take the oaths of allegiance^ fupremacy^ and abjuration, to be probably^ as the plan fuppofes^ Roman catholics. But the oath of fupremacy renders the latter, in my opinion, impoffible. The pope can hardly difpenfe with the teft of the facrar mcnt ; but he cannot in common fenfe dif- l^'enfe with oaths, and declarations, and fubfcriptions, againfi: his own fupremacy, as claiming to be fovereign pontiff of the whole Chrillian world, and, in the power of the triple crown, to bind and abfolve all perfons and things in heaven above, on the [ ss 1 ^the earth beneath, and in the ftate of th? dead below. As it is ftated by the board of trade p. 10. TAe teft is to be fubfcribed by all perfons having places of truji, and fo re- quired by your Majeji/s commifton to the governor. By the teft ad the facrament ^8 to be taken by them within the realm of England. Although Canada is united to the crown of Great Britain, and con- vfequently to the realm, by the terms of ceffion, yet I underftand that the falvo among the Canadians for the oath of fupre- macy is, within this realm? Canada is not this realm, in the view of the Jiatute. After all, if it fliould not be thought .proper for your Majefty to give frefli in- .ftrudions, from time to time, to your governor of the province of Qiiebec, to publiih freih ordinances, with the advice and confent of his council ; nor to convene any legiflative council, or provincial aflem- bly, for the purpofe of revifing or repeal-- ^ 4 ing [ 56 ] ittg the ordinantes already made, and of making new laws ; but if it Ihould be thought the wifeft meafure to lay the ftate of the province before parliament, then I fliould conceive that it will be neceffary to propofe fevcral bills. Firft, viz. A bill for the better regular Hon of the courts of judicature in the pro^ Vince of Slue bee. Second, A bill for declaring the com^ mon law already in a^ual ufe in thefaid province. Third, A bill for better raifmg and coir- leSiing the public revenue, .Fourth, A bill for giving leave to his Majejiys new Roman catholic fubjeSls in the faid colony, to profefs the worfiip of their religion according to the rites of the Romifi church, as far as the laws of Great Britain permit', which were in force antecedent to the dcfnitive treaty of peace, concluded at Parts loth February 1763; and for the ^ .fetter maintenance of the clergy of the church I I S7 ] church of England already ejlablijh(d in the f aid colony. -vHrt;: -n With refpea to the firft, a bill for the bet* ter regulation of the courts of judicature in the province of Quebec, I conceive, that the complaint of delays in proceed- ings of the courts of juftice is now in great meafure removed ; for by the laft re- gulation of the courts of common-pleas, by the ordinance of February * 1770, (which repeals a part of the great ordi- nance of 17th September 1764) it is di- reaed, that the courts of common-pleas eftablifhed with independent jurifdiaions at Quebec and Montreal, Jhall be open to the fuitors throughout the year, excepting three weeks at feed- time, a month at harveft, Mnd a fortnight at Chrijimas, and Eajler, end except during fuch vacation as Jhall be from time to time appointed by the judges •n- This ordinance, which was not in the papers referred, makes the propofitions of the folici tor- ge- neral, on this head in great meafure unneceflary. fr t 58 J >• making their refpeSlive circuits through, cut the province, twice in every year ; and the judges are authorifed and dire^ed to ijfue ihcir^rocefi, and to execute every other Shlng touching the adminiftration of jujiice, without regard to terms or any Jlated pi riods rftime, as limited and appointed by the ordinance of September 1764, ^Lkh, with re/pea thereto, is annulled. The judges to iippointont day in a week, at their Jifcre- Jion, to hear all matters where the cauje ,^f aaion JJjall exceed the fum of twelve pounds, -which dayjhould be declared at the rifing of the court, or the next day precede dngi and no adjournment Jhall be made for ^ny longer time than one week, upon any J>retence or ground whatfoever. Every Friday to be a fixed court^day for matters not exceeding twelve pounds, in which cafe one judge to be fujicicut, the other judge having reafonable caufe of abfence The J-eft of the ordinance contains the forms and modes of proceeding, alfo a claufe, empower-' I 59 ] mpowering perfons, Jpecialiy c$mmijluined 6^ the governor t to bear caufes where the mat^ ter in queflion jhall not exceed three pounds y provided that titles to lands Jhall not h drawn into queftion by their proceedings^ and that they obferve the fame forms of proceed- ing, and that they do not Jit upon a Friday^ but on Jbme other day in every week, \% would be very material to fee what fort of commilllons the judges of the common- pleas have, Jor they do not appear in any papers referred^ I underftand them to have been created by governor Murray, by virtue of his difcretionary power, upon his own ideas. If they are thought pro- per to be continued, certain regulations muft be adopted, in regard to limiting their jurifdidion to cafes not beyond a certain value. 4,1 The expence of the fees of the new courts is eafy to be regulated by a table to be fettled by the judges ; and if they ^re now larger than heretofore, it is no more [ 6o } more than that the fees of juftice keep pace with the price of other matters, ab corti aiid all other thinga, arc more dearly pur- chafed aow than they were in the province before the conqueft, bccaufe there is more commerce, and confequently more fpecie circulating in it, which is the rcprefenta- five, or rather the new meafure of values ; fo that more or lefs fpecie muft be put into the oppofite fcale againft all property ifi the other, juft as it happens, that more or lefs fpecie, real, or nomi^ial, or credited, IS mtroduced into intercourfe and commu, tation. The cafe muft be the fame in Canada as it is in every other country ; and the uncertainty of the laws, and of the judi* cial proceedings, has had no fmall (hare in increafmg the expcnce of them. ^ fn the report * of the attorney and foli- citor-general Yorke, and De Grey, they Art V. No. 8. of the Appendix to the re, port of the lords commiffioners of trade and plan- tat.ons, relative to the ftate and condition of the prevince. I 6, J recommend that matters exceeding forty iliillings, as far as ten pounds, fhould be determined by proceeding (in the nature of civil bill in Ireland) before the chief juftice of Quebec, or by proceeding in na- ture of the fummary bench adions at Bar- badoes. How far the eaP; and chcapncfH of going to law encoungr rat), :r than check litigioufnefs, is pr ty obvious; however, the local value of money will de^ ferve confideration at all times, in iclpcd; to the augmentation of eftablifhcd fees. As a check to litigioufnefs, and for the promoting quick juftice, fome method might be found, fo as to oblige parties in cafes of debt under a certain value, and in all cafes of cuftom of merchants, and of mercantile accounts, to name arbitrators, and thofe arbitrators to name a third if they do not agree; and that the award ihould be certified into the fuperior court, and made a rule of it upon record, and fo carried into execution by it, in the fame manner as if the matter had had the moft folemn 1 62 J ibiemn hearing j for which I cannot refer to a better precedent, than tw the aa of 9 and 10 WilHam III. c. 15, except that the reference is there left to the will of the parties, and of courfe that ad is feldom made ufe of, nor is it very natural that the pradtifers fliould recommend it; and therefore I propofe, that parties, in cafes of certain value, Ihould be obliged to name arbitrators. As the Englifh judges may not happen to be expert in the. French language and law terms, it may be advifeabie to give to laymen, perfons of good character and underftanding among the ancient inhabi- tants of Canada, commiffions to be affeflbrs, but not to have voices* Whether grand juries, or pettyjuries, Aall be laid afide; or whether in criminal; or* civil caufes only; or whether verdidts ihall be an open majority, or whether all ver- dids fhall be fpecial in civil cafes, (as the latter 1 63 ] Jktter is propofed in the plan in the prihri ed colleflionof Mr. attorney-general Ma- aeres) are queftions of which I am not able to form a perfeS judgment, as being partly out of the line of my profeffion- but it merits a particular confideration' how far it may be advifeable and fafe for your Majefty's minifters to propofe any thmg to parliament that greatly deviates. from the general fundamental part, of the conftuution at home, and whic'.,f„ra long time, have already taken place i„ ,h» ^o lony. in confequence of your Majefty'^ royal word and authority. Thejuftifica- tion of your Majefty's judges, the removl mg them from every fufpicion of partialitv and from the danger of perfonal revengV -aalfoamatterofthehigheftconfequenc; owardsthemfelves,.heircou„.ry,yourMa- jefly, and before God. The peril of difcre- t.onarypowers,isfufficientlypointcdoutbv, thatgreatjudge lord Hale, in his Hiftory ofthePeasofthe Crown, page i6o,i 6,' "• ""^ " """"^ 'he greatcft attention from C 64 j froiti thofe perfons who are called upori to propofe a legiflatlve fyfiem. After the evidence of the governor, chief juftice, and attorney-general of the pro- vince, that juries in crimlnol caufes are agreeable to. all the Caftadians, any imagi- nations formed to the contrary, with refpedl to the Canadian lords of manors or noblefle, cannot be admitted. The ftate of the iioblefle in the province will be more par- ticularly explained, when I come to fpeak of the convents, under the head of religion; I will only obferve, in the cafe of trial of a feigneur, that other Canadian feigneurs would probably be fome of the jurors, and that if any of his tradefmcn were (f the jury y they would have an in- tcrcft in preferving the life of the crimi- nal ; as mercantile interefts have often fupported the worft members in a facftious ftate, both in ancient and modern hiftory, to avoid a probability of lofing their debts. But the feigneurs or noblefle by virtue of their their fiefs, and the officers and nobicsfby', patent, who have ferved in the Erench. troops, are, the one too inconfequential, and the other too miferable, in point of property, to merit any diftindion by trials, or in the nature of the puniOiment : to com- pare them to Britifh peers would be to form an argument of ridicule and not of reafon. <»f As it appears that tlie Canadians have Kad fo great an objedion to arrefts beiijg difhonourabie, and as arrefts create fo much mifery in a whole family, who become a burthen upon the public, as they prevent every exertion of induftry, and render the morals of the prifoner much worfe, by confining him in company with the moft^ abandoned criminals, it feems to me that in a commercial ftate it may be proper to take away arrefts of body in the firft in- ftance, in civil caufes under ten pounds j unlefs there is an oath of two iufiicient witnefles, that the defendant is likely to >'•-.; F with- f 66 J withdraw himfelfout of the colony. To arreft an induftrious man, when perfonal labour is of fuch value to the community, •s a public lofs, as well as a private one to the perfon who arrefts : it is put- ting fetters upon that induftry, the exer- tion of which only could difcharge thedebt. If arrefts ftould he allowed, it feems highly neceflkry thatimprifonments Ihould be regulated. It would be happy if they were fo in every part of your Majefty's dommmns. The fecurity and reformation of pnfoners ftould be the objefls of the legiflature in depriving a fubjeft for any time of his liberty: his life, and health, and morals are of public confequence. The police in Holland, where every pri- foner has a feparate cell or apartment, is: defervmg of imitation; neither their minds nor bodies become there liable to the worft contagions; and a releafed prifoner re- turns back to fociety a better and more ufeful [ 5; ] tifbfbl nibjea than when he enteref iil^ cell ^^ ir^dw "* V| •>:fff^f The terms of ft all 3 ordinance of tj February, 1770, appear to me ir cient, in not direding that the fale o. au eftates m land taken in execution fhall be made by public audion ; nor does it regu- late the other conditions of fale, nor the place where the au^ion fhall be : all which being left to the difcretion of the provoft- marfljal, as I conceive it, may be extreme- ly mjuricus to the proprietor; and furnifh perfons with means of procuring the eftates at a price greatly inferior to their true value. The ordinance only fettles the mariner of giving notice, the time of fale, and the fees for the publication. It may he proper to allow all pleadings to be in French or Englifh in all the courts at the option of the parties indifcriminately. It Ihould be known in fuch a country, that parties may plead for thcmfelves : it would be proper to confirm expreffedly fo much ^2 of [ 68 ]• of theprocefs verbal, or rules of pradlce, m. the French courts of the colony of the yth November, i668„ article 6, as relates to this point ; becaufe this public confirma- tion will obviate the complaint among the Canadians, of the expence of fuits, and it will pleafe the inhabitants, v7ithout hurt- ing; the praaitioners; for if the parties can find an abler hzrdv or cnn pay him, cer- tainly they w^M i>-Y him to plead for them: if .hey caanot, it is butjuftice they fhould be permitted to tell their own ftory,. and in their own way. I am profeflionally convinced of the ab- fiirdity and confufion which is ever oc- cafioned when the ftyle and forms of one fyflem of law, or even of one court in the fame fyilem, is applied to the pradice of another : the meafure of proceedings be- ing inconliflent with the nature of the principles, or the bufinefs in queftion, is in many inftances fo unequal^ that to judge of the law of one country by the rules of pro- cfis f 69 J cefs of another Is, befides doing injuflice under an appearance of doing better, a thing as full of abfurdity and ridiculoufnefs, as if a taylor were to take a meafure of a man's coat by a fhip's quadrant. The forms and ftyle of Englifh writs and plead- ings ill agree with the language of the French civil law : it deferves to be confi- dered, how far It may be nectflary to fol- low many other parts of the French pro- cefs, if the French law in civil property is to remain as the common law of the province. I conceive this muft be left to the knowledge, difcretion, and experience of the judges ; who will have the aid . of the bar and the Canadian pi.idlitioners: and it may be enadted that no judgment * iliall be arretted merely for want of form in civil fuits. The faft, the demand, and the defence are eafily reducible to fimple propofitions. But in criminal cafes, as all the law of England on that head adually * Vide follicitor-general's Report. F 3 now [ 70 J BOW is introduced* the forms of india^ ment, ia my opinm^ muft be continued, and ought to be as ftria as in England ; wpoo this ground, becaufe the laws of England being dipt in blood, the advan- tages given to criminals, by the lenity of the pjocefs, and the power of pardon in the crown, are the only ballance of the peculiar feverity which is manifeft in the inequality of crimes and punifhments, The Englilh laws in their inftitution feem to have been made for the terror of a dar* ing people; the execution of them, for a generous and compaffionate one. I con- Cur in thinking that there fhould however be a mitigation of the law of felonies by ftatute. That no perfon in the province ihouJd be capitally convided for theft or robbery under five ppunds, although that is equal to ten in England-, and that in all felonies intitled to clergy, no perfons fhall be burnt in the hand, or their goods con^ fifcated, but the puniihment to be a fine or [ 7' ] or imprifonment, at the difcretion of the tourt. As the province derives the lefs advan- tages from the fuperior court, although the moft important, and moft ably fup. plied, for want of more frequent fittings, « ftould be regulated, and the court of Kmg s Bench ihould be held oftner, and >n terms as ftall be judged moft for the ■convenience of the inhabitants, befides the circuits. For it is ftated that the court of King's Bench has feffions only three times a year at Quebec, and twice at Mon- treal : whereas in the time of the French government there were three royal courts, one in each diftria of Quebec, Trois-Ri- vieres, and Montreal, vefted with full power <^'v.l and criminal: each court had its judge, and a kings attorney-general for crown profecutions. They held two courts m every week, except fix weeks vacation 'n September and Oaober, and a fort- night at Eafter, and thefe courts would 4 even r 7* ] even fit on othtr davs in the week if ex. traordinary bnfi '^: - .quired it. From thefe courts there by an appeal to the fu, preme council of the province, which fat every week. The expedition and -^.fon- ablenefs of fuch arrangement tor the diftri- bution of juftice is infinitely ftriking. And It appears not to have been without caufe that the Canadians have felt and com- plair cd of the difference. To make the fittings of the fupreme court of King»s Bench more regular, it cannct be better than to adopt the ordinance for that pur- pofe, which was recommended by the chief juftice himfeif from the bench to the grand jury of the province, but which di(? no, •pafs, becaufe ibme of tlie Enr^Iifh mer- chants of thatjury.defirous to ^layca.fes of aa,on« for debt in the hen low ftate of commercial credit in the province at that time, did not approve fo much expe- dit'on of judgment J and thereW th, Enghfh part of the jury nev. a uainted * ^^nadim part, all of wL..m are now fenfibje [ 11 ] fenfiblc of the iftility of the ordinance pro- pofed, and regret the lofs of it. Mr. at- torney-general Mazercs has printed it, Colledion, page 71. ^,, . ' > In the cafes of appeals the legal value of money deferves great confideration. If the plan of three courts, an ^ an appeal to the governor and council, with two of the judges and ling's attornies of the other courts, is not adopted, then the appeal, in cafes of four hundred pounds value, might be made dir^aiy to your Majefty, without any othei -ciermediate appeal. ..U may alf proper to ered, as pro- pofed in the 1 ^ irt of the governor and chiel jufticc, a coyrt at Detroit, becaufcthe fettlers th^re, amounting to about%even thoufand perfons, are popuL ing very faft, and extending themfelves, the people of New York are, towarc^ each rher. An objedion may be taken to ti^Sy that It is not policy to encourage ^^ack fettlemt. ts : r 74 J but the queftion feema to be, not whether the population of .he inteHor North Ame- ncafhould be encouraged in policy j but ti.efaa.s,.hat.he. ..aadwilibc'^pu. «.on there; and thatwherepop„,ati7i,, he dommant power muft regulate the fet- tier.,, or they will regulate themfdve, pro. bably to 1,3 prejudice. The interior fettle- nients certainly are a material fupply and fupport,bothofmenandprovinon,tothe extenor on that coaft, and ferve equally to takeoffthe produce of the mother-country and to make return, by the medium of the fea-ports; but there can be no real diftinc- tion as to political good between the inha- bitants of themaritime lineand thofe of the back fettlements. for they are much con- neaed in view of national ftrength and benefit, as the radii of a circle all meet in the fame common center, and all touch the lame extreme boundary. The great diftances of Montreal, one hundred and eighty miles from Quebec, alfo [ 7S 1 alfo of Trois-Rivieres, and Detroit, deferve attention ; and it is an argument fufficlent for forming three courts of King*8 Bench, to fave to your Majefty's fubjedts the great ejtpence of employing for every perfon, not only his attorney on the fpot, bur his agent at Quebec, befides the fatigue and cxpencc of travelling himfelf, and bring- ing up his witnefles from the extreme boundaries of the province, in a very fevere climate. I approve, however, that it fhould be in the difcretionary * power of your Majefty's principal attorney-general, to re- move any party for fafety for a quick and more convenient trial to Quebec j but thi$ Ihould be reftrained to cafes of treafon only. It i^ a fad which deferves attention, that for want of a good government fincc the conqueft, the trade of furs has been but one third of what it was under the French, as appears by the exports. * Vide folicitor-general't Cj^ report. To I 76] _ To look into the map, the fituation of Detroit fufficiemly fpeafcs the propriety ot fome regulation of juftice there ; and more efpecially as it is the mart and en- trepot of the fur-trade and the Indian commodities, fuch a regulation is necef- rary for the trade, and for preferving peace and fnendflup with the Indian nations re- lortmg thither. Jhen Gafpey ftall be fettled, a jurif- d.aion ihould alfo be eftablilhed there; but I Ihould apprehend, from obferving the fituation and form of it in the map- that .t might be very proper to unite it to the province of Nova Scotia. _ I ftould imagine it would be very ufe- tul If the judges were to have a power, in cafes were it might be thought neceflkry, hy themfelves, to appoint commiffioners .'" .'''"\"' P'^'' ^i* power to fummon Junes, before whom examinations may be taken, with proper foiemnities, upon the fpot, ■A in ■■■ "a ^ ■ -■lAi fpot, and a verdid tranfmitted to the fu- preme court under feal, whenever a matter of fad, fuch as concerning boundaries, wafte, dilapidations, execution of contraas, damages done, &c. is in difpute. The taking evidence in private upon affidavits fhould be difallowed, unlefs the parties fhould confent, or the court jQiould direa them to be taken upon a fpecial caufe, or proper grounds fhewed upon motion by council. The injuftice of parties being evidence upon their own caufe, and the pradice of caufes being determined entirely upon affidavits, is too full of evil not to deferv? a peculiar atten^ tion, efpecially if the party who makes the firft affidavit, has not a liberty of a repl'^ to the affidavit in anfwer; in the ufuat pradice, as I conceive it to be, equivocation and perjury muft reign in full force. ''It is propofed, by Mr. Mazeres, that in cafes of debt to a certain amount (which ought [ 78] . ought to be very confiderable), an allega- tion, or plea of faculties or effeas, being delivered by the plaintiff, the defendant ftould anfwer upon oath, giving in an exaa fchedule of his eftate and effects. This propofition may be thought pecu- liarly hard in many cafes ; but I conceive the ftate of the country muft determine the propriety or impropriety of the pro- pofal, and that fuch fchedule and account ought not to be called for without very fpecial caufe, to be determined in the dif- cretion of the judges. In a country in which there is very little money, but corn and other perifhable effeds make the greateft part of the pro- perty of the inhabitants, it may be right, in cafes of fuits for fome fpecial property, of the perifhable nature of which a proof is made, that tke wfmk at the requeft of any one of the parties fliould be liable, by an order of the c/.urt, to l>e Md to the befl bidder, by perfoi^i to be named and com- miffioned f 79 J miffioned to fell by both parties; and that the amount fliall be placed in the hand* of the judge and his regifter, in imitatioa of the civil law methods in u/um jut ha- bentmm, or for the account of the party who ftall finally prevail in his fuit; and the amount to be paid by them into the hands of the receiver of his Majefty'i revenue, for his Majefty's ufe; and that bills be iffued to the faid judge and regifter by fuch receiver for the repayment of the faid fums, at the intereft of three per cent A meafure which I Ihould conceive would be very ufeful to create a dependence upon, and ftrengthen the hands of govern- ment in many views, as well as it would be equitable and advantageous to he re- %aive parties. It may be right, that the judges of the feveral courts in the province, fhould b« allowed a d.lcretionary ,..wer i„ granting ot lull cofts, and taxing bills Inftead t 8o i Inftead of one provoft-marflial fof tfifi' whole province, it is propofed, that there ihould be a fhedff for each diftria, with fomc title or mark of honour to the perfori who ihould bear it. The two courts of commori-pleas, efta- blifhed by general Murray's ordinance of 17th September 1764, at that time with military men for judges, and priefts aflef- fors, and now having almoft all the affairs of the colony brought before them, evi- dently tend at all times to leffen the utility and confequence of the fupreme court. Mr. Mazeres recommends that the pro- vince be divided according to its three an- cient diftrias of Quebec, Montreal, and Trois-Rivieres; that t>ere fhould be three royal courts, or courts of King's Bench, in each J that the judges ftiould have been barrifters at law, v.;,.^ have been exercent three years at the Englifh bar, at leaft, and who have a competent knowledge of the French t 8i ] French language, and three King's attor- nies, and no other courts. Thefe court?* to be limited to their refpeaive diftria , co-ordinate indeed, but not concurrent, as not of equal authority every where, nor as liable to be controuled by each other: and this meafure Mr. Mazcrcs recommends on a ground which appears to be very conclufive, that this divifion is befl adapted to the fituation of the fe- Ttral parts of the province, and that the Canadians have been ufed to it, and that it is therefore moft agreeable as well as convenient * If this eftablifhment of three courts were to take place, then it is |)ropofed, in the fame plan, that there fhould be an appeal to the governor and council of the province, confined to a certain value, and from thence to your Ma- jefty in your privy council. The reafon laid dc !i is, that t}ie appeal to the governor and council would preferve a * Pointed Coil;;Cuou, d, ■58. " o^ G uni- I «2 1 uniformity of law throughout the whole province, and would obviate a difference of decifibn, which might graduaUy grow Z -1 ^T"^""'' '" ""= *^« different d,ft„fts, ,f the three royal courts, or of Kmg s Bench, were to be left perfedly i„. dependent, and not to unite in a third fu- perior court in the province. It is alfo very well propofed, that the three Xmg's judges, and three attornies, fliould be members of the council ex officio, fo as to aid the governor and council upon appeals; whereby the beft law abilities in the province wouid be employed in form- ing decifions in the laft refort, which would be in faa checking any arbitrary proceedings of a governor, and forming thelawof^heprovince. That they Ihould attend the governor at certain times of the year moft convenient for hearing appeals, which .s thought t6 be one month atChrift- m.s. To this I muft add, in my humble opi'Mon, a neceifary limitation, ' U,at the r . 1 J t t i -.hT- I h 1 judge from whom the appeal lies, aacj the King'b attorney in his court, Ihall not iit at the hearing of the caufe appealed. It might poffibly not be improper to add the judge of the vice-admiralty, and the advor cate-general, to the number of the members of the council, as before propofed. T^iat no appeal Ihould lie to the King and council under five hundred pounds, is thought by fome perfons a hardfliip, and that it leaves no check upon the governor and co.uncil in lefs fums of great value in fo It Is propofed by Mr. Mazeres * that r'j new examinations fhall be taker opon ai.* peals in any caufes, but only any ■ ;ror of the proceedings be correaed, and a new trial of any faa, if good caufe is jhewn. fliall be granted ; and a trial, by a 'double number of jurymen, if the lofuig party re- > * i'^-.teJ Colleclion, p. 38, 39. O 2 nnirr»a -^ — *« X V [ 84 ] quires it. That the method of proceeding in the firft inftance in civil anions * in the common law court, fhould be as follows; the plaint is to be read to the judge in open court; if he determines that there i| good caufe of adion, fummons to iflue^ but not tiU then. If the plaint is admitted, it is to be filed as a record; if non-ap- pearance of the party, or good cauie fliown of non-appearance, then the party fum- moned to pay cofts, at the judgment of the court, upon circumftances, for the delay of fuit; andfrefh fummons to appear again fliall ifTue ; if negled to obey thefecond fum- mons, judgment to go by default. Anfwer to the plaint to be either in French or Englifh, and to be filed. That the judge may interrogate the parties himfelf, in or- der to determine whether farther teftimony is neceflary. If either of the parties, on the judge determining that farther tefti- mony and trial is neceffary, chufe to have Printed CollctTcion, p. 33. a jury, { 85 J a jury, the party praying it Ihall pay the cxpence of the jury's i: i *ndance ; if both pray to have a jury, both fhall pay. If the conteft is between a native born fub- jed and a Canadian, the jury to be de mc- dietate, if either party (hall require it : the jurymen to receive five fhillings per man. For at prefent the Canadians, as it is ftated upon good authority, complain of the at- tendance upon juries, in civil fuits, as a heavy burthen and interruption of their occupations : though they like well enough to be tried by juries, they do not like to be the triers *, without fome comjpenfation. That any governor fhould Jhave it in his power to fufpend, fuperfede, or otherwife controul, the counfellors or praditioners at the bar, is evidently liable to many objec- tions. In my humble opinion, therefore, it feems neceffary to enad, that for the better regulating all the public courts of * Printed Inclofure, p. 38, G3 juftice [ 86 ] jufticc of the province, the chief juftlce ihall have the fole power of admuting and licenfmg all advocates, counfellors, and pleaders, procurators, attornies, and foli- citors, in the feveral courts of juftice in this province ; with power to make rules for the proper fcrving or education of fuch perfons, and to examine them before ad- miffion, and to rejed them if he fhall fee caufe ; alfo to fufpend or deprive them of the exdrcife of their offices, for any negledl, contempt, delay, or malverfation, fraud, or undue proceeding, in his or any other court, when hr Oiall fee caufe; and the governor of tr.., i,\d province fhall not interfere in the iime in his public capa- city. It is alfo a point that merits great atten- tion from government, that the notaries, who are a very ufeful and very refpedable fort of men, Ihould be continued with their ufual privileges, and have fome advaoi. tages granted them, and ihould be allows cd . 87 1 «d to praaife .- folicirors and advocates, and ven to he aircflbrs. ^.i ilKnf'. It would be right that the lawofHqers of the crown fhoidd have honourab c eft; - bh'fhments, fo as to raife them hlg^ refped from the inhabitants, and to them lefs dependent upon private bui s. The falaf ies, as ftated in the Inclofure /ip- pendix, No. 1 5, are very mean and un- worthy of 1 of education, abilities, and honour. 1 aoic clients who pay beft for time and labour, will certainly be beft ferved. An encreafe of falaries will cre- ate an expcnce : but there may be a falfe ceconomy ; and there is no doubt of the truth of this proportion, that a fmall body of men of abilities in the law, fent out and maintained by the crown in a manner ade- quate to their rank, and made mdepen- dent of every private conneai^a, will an- fwer the views of government, and pre- ferve the peace of the colonies more effec- tually than ten regiments. What has been the confequence in the cglonies, and elfe- 'iU ^>. \ ^2. V ^ IMAGE EVALUATION TEST TARGET (MT-3) // ^/ , ,\ &^ ^N^ :\ \ ^ ,v^'^* .v^ f/i [ 88 ] elfewhere, of independent men of great abilities in the law, diffatisfied, with reafon or without, and who have gratified their own refentment, or the views of a party, at the exp^ce of the whole kingdom, I need not to obferve, and fhall only refer to that part of the report upon the civil go- vernment of the colony made by Mr. Yorke and Mr. De Grey, which is very ftrong in- deed upon this point *; of the meanefs of the law eftablifhment, which has too long remained a difhonour and a prejudice to your Majefty's fervice. T/iefecondheadpropofed is a bill for declare ing the common law of the province, .The Canadian lawyers are. It feems, not entirely agreed how much of the French fyftem of the cuftom of Paris f has aau- ally enured in the province of Canada. The capitulation for Montreal and the pro- • Vide p. 156, Inclofure of the Board of Trad«s Art. 2. t Printed CoUeaion. vmce. I 89 ] vince,> article thirty-fix, which engages to ' preferve to the inhabitants their property, feems to me to ftipulate the manner in which that property is to be held j of con- fequence the tenures are to be preferved, and all the laws relative to that property. For it is not only the thing which we hold, but the manner in which we hold bene- ficially, that conftitutes our property; therefore I conceive that all the lands in Canada, the property of native Canadians, or which have fmce pafled by defcent or by will, are, in virtue of the capitulation, ftill governed by the law of France, as to the tenures or modes of holding ; althou«^h by the forty-fecond article of the capitula- tion granted for Montreal, and the rell of the province of Canada, and by the ninth article of the treaty of Verfailles, the in* habitants become fubjedis of your Majejiy. How far your Majefty*s proclamation, and the commiffions and inftrudions have or have not fuperfeded this idea, arifing out of t 90 J of the terms of the capitulation and treaty, and howfar the cafe of the new fettlers, emi - grants from Great Britain, and acquirers of lands by new titles, as by mortgage, grant or purchafe, is capable of a diftindion, has been already obferved upon. I think there is a great diftinaion be- tween the treaty and capitulation; for the treaty, which makes the inhabitants fub- jeas of your Majefty's crown, confirms to them their property in no other mode than in a permiffion to retire, and to fell their eftates, and thofe reftrained to be fold to Britifh fubjeas. So that if they ftay and claim under the treaty only, they ftay under condition of becoming, by their own free aa, Britijh Juhjedis , and as fuch fiibjea to Britiih laws. But the treaty made with the fovereign power of France, which, without taking notice of the capi- tulation, transfers its fubjeds pleno jure, does not fuperfede the capitulation made xvith the inhabitants;, becaufe I confider capitula- I 9- ] capitulations, in the eye of the law of na- tions, to be not only as national, but per- fonal compafts, and made with the inha- bitants themfelves, for the confideration of their ceafing their refiftance. It is con- fiftent with the hongur and interefts of this kingdom, that they fhould be religioufly obferved, and that the condition of the grantees fhould be rendered fubftantially better, rather than worfe, fo far as any perfon or perfons are capable of taking benefit of the grant. At the fame time I muft obferve, that I do not conceive that your Majefty is fo bound in your legiflative capacity, that you cannot in parliament change the lawL of fucceflion or heritage, or prevent the keeping up any corporate body ecclefiafti- cal, by preventing a perpetual renewal by new members, or that your Majefty cannot regulate any other general matter of dividing property real or perfonal, after the death of th^ poiTeflbr, in the fame manner as your ~fki!t». ' Majefty, [ 92 } Majefty, in parliament, may change the laws refpcaing your other Britifh fuhjcas; fo that the law be not made to the prejudice of any particular private perfon while he lives. Inafmuch, as no man naturally hath property after death, the community to which it reverts has a right td fix the law of partition after death, as it fliall judge moft for the benefit of all its mem- bers. The right to difpofe by will, or to make a private law for a family, is a pri- vilege granted by the community; and reluainable, as the law of France reftrains it more than that of England, by except- ing the legitime and limiting devifes of land in certain degrees, except by deed by and among parties living. It would probably anfwer every juft and rcafonable purpofe, and would tend per- feaiy to quiet the minds of your Majefty '» Canadian fubjeds, if a bill were to pafs in parliament to the following efFe^. That m all cafes of wills, tenures, ancient rents, ^ . ;: quit- t 93 ] quif -rents> fervices not being military, di- vifions of lands, and transfers, hypothe- cations, or charges and pledges, or incumr brances of property, moveable and im- moveable, and of hereditary defcent, or partition of dower, or diftribution in cafe of int'Cftacy, the legitime, or portion of children and widows, and of all deeds, leafes, and contrails, the ancient laws, cuf- toms, and ufages of Canada fhall be valid ; unlefs the faid cuiloms and ufages fhall have been deviated from by any con- fent of parties by exprefs convention, or in which the modes of the Engliih law, as in cafes of transfer between, a Canadian and Englifh born fubjedt, fhall have been followed; that in all cafes where fuch cuflom and ufages of Canada are relied upon, either by the party complaining, or the refpondent, fiich cuflom and ufage ihall be fpecially pleaded. And in order the better to erafe from the minds of the Canadian fubjeds, their ideas of veneration for the edids of their late fovereign, and for t 94 ] for the arrets of the tribunals of France, and as much as poffible to make them fenfible of their union with, and depend* ence upon the Britifh government, it fliould be enaaed, that the French law, known under the denomination of the cuf- tom of the vifcounty and provoftfhip of Paris, and fo much thereof only as hath aaually been pradifed in the province, ihall be pleaded under the title of the com^ mon law, and the cujiom of Canada, as by adl of parliament eJlabUJhed, and under no other title whatfoever ; and the abftrad of the faid cuftom, as hath been drawn up by a committee of Canadian gentlemen of the law, fhall be annexed to the bill to be referred to, as the fole rule ; obfervin^ij only the alteration in the articles 99 and loi, as in the advertifement or preamble of the faid abftraa is fet forth; that lands already granted, or to be granted by your Majefty, your heirs, or fucceffors, fliall be holden in free and common foccage tenure, and Ihall pafs according to the laws (95 ] /aws of England : power always referve^ to your Majefty to make grants of lands in any other mode of tenure, if to your Majefty it fliall feem meet. The mode of doing fealty and homage for the Canadian feigniories already efta- blifhed is extremely fimple, as appears in the principal extrads of the French laws, c. 1. tit, Foi et homage. If it is proper to change it at all, it will be better to form a record of the title of the tenure in a more folemn manner, by regiftering the homage. It may be proper that the laws of the police hitherto eftabliflied and pradifed, fliould be obferved and carried into exe- cution by the juftices and other peace offi- cers, and that his Majefty*s governor may, with the confent and advice of his council, at any time, on the prefentment of any two or more lioufe or land-holders, or any one of his Majefty's juftices of the peace, or law officers, iflue fuch frefh orders of police 1 96 J police as he Oiall judge nccefTary, from time to time, for the better maintaining the highways, ftreets, bridges, paving, public edifices, wharfs, navigations, for preventing fire, and removing of annoy- ances to health, or to the free paflTage, in places where paflage hath been ufual; pro- vided that fuch orders be fubjed to an ap- peal in cafes of property, above the value of ten pounds, to the chief juftice of tho laid province. The Canadian inhabitants readily enough embrace the protedion of the laws of Eng- land when they find they make for them. There is fomething very whimfical in tb« cafe of M. St. Ange, which I have {een as ftated upon great authority, and it (howa the motly mixture of French and EngHfli laws in the province, and the confuflon rc- fulting from the uncertainty of them, and the want of a regular fettlement. Mr. Grant purchafed the eftate cf a minor, Mr. -St* Ange; the former a BritiOi fettler, the latter t 97 i I ^»i» '3jii>.)i m. fatter a^ Canadian. Mr. Grant never ing feeii the eftate, paid a part of the pur- chafe money, which was veryconfiderable: iipon a view of the eftate he found it in- ferior in value to his ex pe (Stations by one half. He was fued for the remainder of the money ; he pleaded the civil law of France, and infilled that he was intitled to a reftitution in integrum^ on proving the true value of the eftate to be only one half. The Canadian infifted upon the laws of England, and a fpecial performance of conirads, on the ground of the rule of the law vigilantibus non dor77nenubus fuc- currit leXi This caufe will probably find Its way to the council at home. fi^md) 1' 1 •", . ^ ..' ' The defcription given by gt .cal Carl- ton, in. his letter to the earl of Shelburne^ No. 3. p* 90. 24th December 1 767, of the confufion of the courts of juftice, and the tonfequence of their proceeding by difFe- rerit rules is very ftrikmg : t/ie governor and councilr as a court of equity^ reverjingthe M « decrees [ 98 ] . decrees ofthefupreme court of King's Bench, •ahlch revcrfa that of the Common Pleas. There are a number of cdias, declara- rations, rules, ordinances and provifions. wh.ch have hitherto been the written law of the colony, and in aflual ufe; which appear from the extradls to be fo wife and well fitted to the nature of the colony, that although they cannot now operate by the authority of the French King, yet they feem many of them very proper to be adopted in the new fyftcm of law to be gi- ven to the Canadians ; and thereforeit may be right that the fttbftance of thofe extrafls which are proper fhould be declared to be a part of the common law of the province of Quebec; and to be recited accordingly m thisaa of parliament, and to be plead- ed under it, and not under any other title than as the aB of his frefent Majejty for de- ctarmg the common r.no of the province. This article cannot be concluded with- out taking notice of the aa of habeas cor- » pus. t 99 ] })U8, the benefit of which, if extended to this province, may in policy be limited, on account of the peculiar circumftances of the province, and the natural views of t^e court of France in cafe of a future war. The governor and council may havei a power to fufpcnd the efFedt of the fatd ad, during the time of any hoftilities or de- clared war, rebellion, infurredHon in arms, or invafion of the province, or any other of the dominions of Great Britain. The propofition made by Mr. attorney- general Mazeres, in his printed draught" of a bill for parliament for fettling the laws of the province, defcrvcs a very particular confideration, whether it may be uleful (if it ib thought proper to deviate at all from the French laws of Canada refpeding civil property) to introduce the mode of diftribution, fo equitably fettled by the fa- mous ad of Charles II; the Englifh law of dower; of wills of perfonal and nW eftate (in which latter cafe, the French H 2 by fei [ 100 ] 'ifVfo by their otvn law are under fome reftraint) j inheritance in defcent, and of coheirs ; with fome alterations in the iVench and Eng- law more confonant to natural equity with refped: to parents in the right time af- cending inheriting the lands of children, in default of heirs in the defcending liney or of brothers and fifters in the collateral, and lefs confonant to the feudal principle;, which reftrains that afcent, and which givesy according to the law of England, the pre- ference to the uncle to inherit the lands of his nephew before the father of that nephew. Ifl the preface to the abftrafit of the laws* of police, drawn up by the Canadian law-- yers, great complaint is made of the not obferving the arret of the council of ftate of 28th April, 174 Sr which forbids the building any houfe or outhoufes with ftone* or timber, unlefs the owners have annexed a French acre and a half in breadth, by- thirty or forty in depth, on pain of a hun-- dred livres as fine, and demolition ;: ex- cept [ 101 J ccpt granaries, hay. lofte, and ftorehoufes. It is reprefented that the prefent inhabi-^ tants avail themfelves of the laws of Eng- land, and croud together, as it is natural ; in confequence of which many of them live very miferably and idle j and the lands which are more remote remain uninhabited smd without cultivation. To endeavour to enforce the fubftance cf this arret jy any act of the Britifh legiflature, would be deemed a hardfhip unnatural to the free- dom of our government, nor v/ould fuch an ad be carried into force : and there- fbre, like all other ads unexecuted, which are found to be mere fwords in the fcab- bard, it would only ferve to weaken the high idea the people yet have of the fove- reign authority. The prefent allotments of lands are thought, being parcelled out in contigu- ous columns of a certain breadth and depth running up from the river St. Lau- rence, to be the bed calculated partitions H 2 polfible [ »©2 ] poffible for the maintenance of each fepa^ rate family and for mutual aid and defence j and therefore the preferving of the indi- vifibility of thefe allotments is an objed: which is thought to merit the attention of legiflature: with this view Mr. Mazeres propofes, in a printed draught of an aOi of parliament, an alteration of the laws of inheritance, to take efFecft at a diftant period, fo as to hurt no perfons now living, who therefore cannot complain ; which al- teration might anfwer thepurpofe ; befides, that by the power of making wills or deeds, every man has it in his power to form an- other law for himfelf, and his family, de- fcendants, or devifees, fo as to render any fixed law of inheritance of no effed, if it does not fall in with his own ideas; by thefe means, agreeably to the fpirit of hu- man pride, which carries its views beyond the grave, he may unite all the lands he pof- fefles, in one hand, and in a certain line, the firft point of which the teftator is delighted to form, and to extend himfelf into an ideal perpetuity t 1^3 J /perpetuity by fuccefTion. The French law reftrains at prefent the power of devifing hy will, by its alloting portions called the legitime ; the Canadians may defeat the new law of inheritance as propofed, at their own pleafiire, if it were to take place by their wills or marriage contrads. The modification of introducing the law of pri- mogeniture to take place at a certain dif- tant period, ftrikes me as very prudent ; becaufe I am fearful that nothing would tend more certainly to give difguft to a people, however difpofed to fubmifSon, than an immediate alteration of ancient laws of inheritance, well known among them, and fettled by ufage into a kind of holy reverence. A change of the law of dower, and of all that article of the French law concern- ing' property between hufband and w4fe in communaute might be rendered ufelefs, if the propofed change on this head were car- ried into execution : for altho' the French H 4 law L ^04 ] J^,\y I?^s i.ts.Aibtilities, and migli. b^ amend:; ediand^ ^ipplified by the introdMainn of. the Englifli law of dower j yet the fad h, the law of dower is rendered inefFedual ii^ EnglaAid, by the creation of trufts, and frequency of maniage fettlements ; the French are particularly accuftomed to make formal marriage contrads, even when 4 very fmall property is the objed of thofe conventions, and among the loweft people. In refpea to wills, I approve the amend- ing the Englifh ftatute of frauds, and ex- pending the fame formalities to perfonaj eftates as to land. The propofed article, that no will fhall be valid, which is not executed feven days before the death of the teftator, with feveral amendments of the ilatute, will be of very great fervice, yet not fufficient, in my opinion, to prevent fraud, which the folemnities of the very forms, required by the above ftatute i^i the? cafe of lands, have rather furniihed witft ^S ^^^^^«^^ itfrlf ioftead of defeat!^ tni ' it. L i<^5 1 ji^iP Nothing can eiffeaually dcftroy *raUci( but the atteftation of public i^etfonsi the lodging an authentic copy fealed with 4 magiftrate, by the teftator himfelf, and the revocation as formal as the making of a will : all which Ithmk is admirably well anfwcred by confirming the French law, as in the printed extrad, Tit. XIV. Art. I.* If the diftance of feven days between making the will and the death of the tef- tator were added, in order to give validity to an adt requiring fo much deliberation as alaft will, it might be ftill better, and that even the party fhould have appeared at fome place of public worftiip, and accord- . ing to the Scotch law, at market, if there i^ pne^ in the interval between making his will and before his death. The Englifh law of diftribution of per- fonal eftates in cafe of inteftacy, I con- ceive to be a very good law, becaufe very clear and very equitable. It feems unrea- fonable that the Englifh fettlers ihould fubmit I io6 J /ubmit to the French law in regard to per- fonal, however they may acquire lands un. der the French Jaw, now propoled to be adppted, fo as to be confidered hereafter as the Englifli common and local law of the province. An uniformity of the law of perfonal eftate would be extremely con^ venient and ufeful for all the inhabitants in a commercial country, and it would pre- vent great confufion when Canadian and Englifh families come to be more mixed. As lands are a permanent, but perfonal is a floating property, the laws relative to ' them may well be made different; the po- licy which regards the encouragement of perfonal induftry and commerce on one hand, and the permanency of landed pof- feffion, for the purpofe of keeping up de- grees of fubordination in the fubjed, and for the better tillage and military defence oif a kingdom on the other hand, didate^ this diftiniftion, At L 'g; ] At the fame time I conceive that th« French laws of diftribution of perfonal property, in cafes of inteftacy, and the le- gitime have a great deal of equity ; yet with refped to the partage of their land9 among all the children, without regard to primogeniture, it is attended with great in- eonveniencies to themfelves. Nothing re- duces the families of the ancient French feigneurs to mifery more than the divifion and fubdivifion of their lands by their own law ; a law, which though it appears at lirft to breathe more the fpirit of demo^ cracy than of monarchy, yet it is in fa£|: calculated for a military government only; becaufe nobles fo reduced can and will onr ly liY,e by the fword *. Tl>e allotments tq the * Des les premiers jours de la colonic, on I'avoit comme etoufFce au berceau, en accordant a des of- ficiers a des gentilhommes un terrein de deux a quatre lieues de front fur un profondeur illimitee. Ces grands proprietaires hers d'etat par la medio- crite de leur fortune et Ic peu d'aptitude a la cul- ture, de mettre en valeur de fi vaftes poireffions, furent !!' [■ io8 ] the under tenants In Canada are about eighty acres, juft fufficient in that cold pountry for fummer pafture and winter fodder, for the cattle of one family. J have no objedion to any middle fyftem between the French and Englifh law, bet* ter calculated for keeping up a fort of yeo^ manry or gentry, with eftates or feignioriea as now allotted, of about two or three hundred pounds a year when well culti* vated, andto beindivifible; provided that it is right to new model the colony all at once. Probably every year, as more re^ mote from the conquct'^, will lefTen the fubordination of the people, and may en- creafe to your Majefty's government, the difficulties of any future reformation, of both the law of England, and of France. Jilt furent contme forces de les diftribucr a des foldat? on a des cultivatcurs, a charge d'une redevauce perpetuelle, C'etoit introduire en Amerique une image du governement feodal qui fut long temps la ruine de rEurope. Hiftoire Politique, torn. vi. ■ * ' The [ 109 ] The propofitions of Mr. Mazcrfea on this head, therefledion of governor Carlton oni the clofe of his letter, No^ 5. (proiwfing a few companies of Canadian foot and officers) upon the effeds of divifion and fubdivifioft of lands in every generation ; the idea of th6 French government in the arret quotec!, but impracticable to execute, and the lawaf of Normandy, which agree in part with the propofitions of Mr, Mazeres, are rei-* fans in favour of this change. Whethei' it may be a mea;fure fit at the prefent, or at a future time, and by what authority to bef carried into execution^ muft be fubmitted toi' the opinion of thofe perfons who are beil acquainted with the difpofition of the ir^a-' bitants, and the ft ate of the colony in th€i prefent partitions, and to your Majefty's royal wiidom, upon the queftion of the prefent expediency. The detriment to the French colonies, as an obftacle to the clear- ing and cultivation of more lands, arifmg from the French law of partition, is fo ftrongly painted by a French writer of gr^at t no 1i ^rcat authority and abilities, that h{4 his opinion appears to me to be contlufive i I have therefore given the whole of his opinion in the margin *. rp. ♦ Qiii le croiroit? Unelol qui fcmblc diiSltis par U nature meme, qui fe prcfcnte au coeur de rhomme jufte et bon: qui nc laifle J'abord aucun doute ^ J'cfprit fur la rsdtitude ct Con utilitc : cctte loi ce- pendant eft quelquefois contraiie au maintien de nos focict^s: ellc arrcte les progrcs des colonics, les ecarte du but de leur deftination ; et de loin elle pre- pare leur chiire et leur ruinfe. Qui le croiroit ? C'eft Tegalite de partage entre les enfans oU les co- heritiers^ Cette loi ft naturclle vcut eire abolie cn Amerique. Ce partage fut neceflairc dans la formation deV colonies. On avoit a defricher des contrees im- menfes. Le pouvoit on fans population ? et com- ment fans proprietc fixer dans ces regions eloignees et deferts des hommes qui les plus part n'avoient qiiittc leur patn'e que faute de propriete. Si le gouvernement leur eut refufe des tcrres ces avantir- riers en auroient cherchc de climat en climat, avec Je defefpoir de commencer des etabliflement fans nombre, dont aucun n'auroit pris cette confiftance qui les rend utiles a la metropole. ' Mais depuis que les heritages d'abord trop eten- dusont etereduits par une fuite de fucceiiions et de partages foudivifc!,, a la jufte mefure qui dcmandent' t «" ] ' • There 18 one more obfervatioh which f» to be made, before I dilmifs the fubje^ of landed les facllites dc la culture; depuis quMs font afleSs limites pour iie pas refter en friche par \e d^faut d'une populatiou equivalente a Icur etendue, um divifton ulterieure de terretns les fetoit rentrer dans hur premier neant. En Kurope, un citoyen obfcur qui n'a que quclques arpens de terre, tire fouvent un melHeur parti de ce petit fonds, qu'un homme opulent des domaines immenfes que le hazard dWl*» naiflance ou de la fortune a mis entre fes mains. En Amerique, la nature des denrecs qui font d'un grand prix, I'inccrtitude des recoltes peu varices dans leur efpece, la quantite d'efclaves, debcftiaux, d'utenfiles neceffaires pour une habitation: tout cela fuppofe des richeflea confideraWcs qu'on n'a pas dans quelques colonies, et que bientot on n'aura plus dans aucuneCi le partage des fucceffions continue a morceler, a divifer de plus en plus les terres. Q^un pere en mourant laifle une fucceffion d« trente mille iivres de rente. Sa fucceffion fe par- tage egalement entre trois enfans. 11 feront tous Tuines fi I'on fait trois habitations : I'un parcequ'on Jui aura fait payer cher les batimens, et qu'a proportion il aura moins de negres et de terres; les deux autres parcequ'ils ne pourront pas exploiter leur heritage fans faire batir. lis feront encore tous ruines, fi l'J^abIta:ion entiere refte a I'un des trois. Dans un paid { 11* j Ittiiibil inheritance, '^t both by tJitf fub- tUitkd of *he Krig^Hlh and of Hq French hWii the commutation of landed property 18 rendered liable to rridch delay, difficul- ty and litigations on titles, and prevents^ its bemg brought into commerce fo much as it might ; which is. a matter of the ut- moft importance in any commercial cout»« try, particularly in a new colony, where tredit wants every fort of fupply and foun- ^' ' • datiort pais 6^- la condition du creancter efl la plus mau.<» vaife de toitxes les conditions, les biens fe font eie- ves a une valeur imnlod^rcc. Celui qui reflera pofTefTeur de tout fera bien hcurcux, s'il n'eft oblige dc donner en intercts que le revenu net de I'habita^ itoU^^ Or comme la premiere loi eft cclle de vivre, il commriicera par vivre et ne pas payer. Scs dettcs t'laccumuleront. Bientot il fera infolvable j et dir ^yfordre qui naitra de cette fituation, on verra for- tir la ruine de tous les coheritiers. L'abolition de Tegalit^ dcs partages eft la fcul retnedc i ce d6ft)rdi^; HJftoirc Politique, torn. vi. p. 155, 156, 137. The author goe . '>a to prove that the great load of debts due both ivi, '-i the French colonies, as well as to' the mother-C'iC. y, wh -h ruin? all their eftablifli- mehts^ is OvwO s x jf the )?■/ of partition and fubulviaun c< kind:, ud tnjintiurii in iUCCCuiOus, t «»3 1 Nation. The r^trait lignager and fcod«tl makes a part of the French lavr» whereby, the lord or next heir mud be parties con^ Tenting to the fale of every eftate, and to havt .1 ri^ht of lods and ventee of refum^ inland pre-emption within a year, which light is a twelfth part of the purchafe^ money, and cannot be taken away without injury to the proprietor, the lord having taken a fmall rent (originally from his un*- der-tenant) with a view to thefe fines of alienation to a ilranger, which are the great profit of all feignories. So that if the lord had" not this power of refuming, he might be defrauded by a fale for a left pretended fum than was adlually paid. Thefe fubtilities introduced however into the forms, often defeat the lord and the hieirs j becaufe the decifions of the courts cf France, adapting their interpretation of the ancient exifting laws to the want* and manners of the times, endeavour tofap all thefe obftacles, and to introduce by de- grees, and by conftru^tion of law, an eafy I oom-* t ti4 J commutation of landed property, neaeffaiy in an age of commerce. If, therefore, the mode of tenure is to be changed, as it is propofed, fome eompeniation ought to be given to the lord and heir, as in the cafe of extinguishing the heretable jurifdiaions in Scotland. The leaving it in the power of a feigneur, at the age of majority, now made twenty-one by an ordinance, to change his tenure into common foccage^ and defcendible by the EngKfh or by fome more convenient mode of inheritance adapt- ed to the nature and cultivation of the lands in allotment, is an option to which no Canadian can have any objcdion. Third Article. A bill is propofed fir the hetter raifmg and colleBing his Majejifs re^ venue. On this fubjea it may be proper that cafes- touching the King's revenue, whether in- ward or outward, fhall not be tried by juries. The facilities, the certainty and cheapnefs* [115 1 cheapnefs of coUeaing, and fettling ap* peals concerning the land-tax in England^ are an admirable example, how eafily m€n may be reconciled to public burthens, if they are but complimented with the bu- finefs of levying and judging of them themfelves. As the fupporting the pro- vince with all the neceflary and executive parts of government depends upon raifmg an adequate revenue * ; and as interefted juries will always fufFer to efcape the per- fons of thofe who defraud it ; a Britifh parliament, fo ufed as it is to the modes o^ the revenue laws in England, may eafily be brought to introduce into Canada, fomeo^ the fame modes of taxation as in England* * L'adminiftration des finances ne percevoit au Canada que quelques foibles lods et ventes. Und Icgere contribution de;; habitans de Quebec ct Mon- treal pour I'entretien des fortifications de ces places, des droits, mais trop forts, fur I'entrec, fur la fortie des denress ct des marchandifes j tous ces ob- jets ne produifoient au fix en i747qu'un revenu de deux ccns foixante miile deux cens livres. Hiftoire Politique, tom. vi, p. 143.. 1 2 If i [ "6 J If a certain number of the principal rancf* holders of the Canadian feigneiir s were to be appointed, together with his Ma- jeftys governor and judges, to be commif- Imners, with the title of tres illuftres, or right honourable, to hear and determine finally all matters and caufes touching the receipt and collection of all taxes and m- land duties raifed, or to be raifed, fines of feigniories, and other dues of his Majefty's leigriioral rights (concerning which diffi- culties have been made) and revenue of what nature or kind foever, it would, to- gether with ai competent fafary, be a flat- tering circumftance to the Canadian landed gentry who fhould have thefe commiffions, and would ferve effed:ually to prevent eva- fioiis of the revenue laws of any. fort, now or hereafter^ on the part of the commer- cial inhabitants, chiefly Englifli, and who are the people moft tempted to evade them. But this regulation ihould by no means extend to take away from the admiralty court its jurifdldion concerning duties and and forfeitures, under the ads of trade; but that the officers of the crown may fup there as ufual, and as they ftiall judge proper : but with a fpecial claufe, that .in aJl cafes where, by the afts of trade, hi* Majefty is intitled to any part of the for- feiture, all fuch caufes fhall be carried on, both in tfhc firft and fecond inftance, in the name of his Majefty's advocate-general, in order to prevent coUufive defertion of the caufe, or appeal, on one fide, or unjuft harraffing of the fubjed on the other. This will be agreeable to the pradice in England, where all fuch caufes are carried on in the court of Exchequer, in the name of his Majeft/s attorney-general, hy aft of parliament. Under the articles of revenue, the pro- pofition of colonel Carlton, Appendix, No. 1 2. feems very proper to be eftablilhed. That all veflels coming up the river fhall be obliged to enter at Quebec, and fhall not break bulk at any place before they arrive there. I 3 The t "8 ] The propofed duty upon rum will alfo deferve the confideration of government ; and it is underftood, that there is already fome bill prepared upon this head, and now under conlideration of the board of ^1. . mm There are very able informations on the fubjedt of duties in this province, in St private paper of Mr. attorney-general Mazeres* -•r, As it appears that your Majefty's go-- vernors have omitted to require the oath* of fealty and homage, legal doubts have been ftarted, whether the fines to the crown, upon the alienation of lands, *and other feignioral rights, are due till fuch fealty and homage have been done : it fhould therefore make a part of the bill touching the revenue, that all dues here- tofore paid to the French king, whether arifing out of lands, or under any other denomination whatfoevcr, are payable and to ( "9 ] to be paid to your Majefty, your heirs, and fucceflbrs, unlefs your Majefty fhall, of your royal grace and favour, remit the fame for the greater encouragement of your new fobjeds.^ The feigneur-paramount has what is called the quint. To the feigneurs, the fines are a twelfth part of the real purchafe- money bona fide paid ; and if the vendor pays it immediately, two thirds of a twelfth only are taken, which are equiva- lent to an eighteenth of the whole purchafe- money. The fluctuation of property has been fo great fince the conqueft, that the fines of alienation have been very bene- ficial to the lords, and confequently there muft be confiderable fums due to your Majefty on the fame account. ,. . , FoiHTth article. A bill is propofed JP giving leave to your Majejiy*s Roman ca- tholic fuhjeBs in the faid colony, to pro- fefs the worjhip of their religion, accord- I 4 i»g < t "0 ] '«S to thi rite, tfthe Romijh church, a, M <" tilt law of Great Britain permit ■Which are already in force, and antecedert to the defmitive treaty of peace, concluded "t Pans, ,0th Feiruary ,763, and for ih, letter maintenance of the clergy of the church of England already eflabUJhed in the fata colony. The treaty gives the fuperiority to the l^ws of England: it underftands them all to be introduced into the colony ipfo fado. Ihe treaty ftipulates clearly that the laws ihajl not be changed in this article with your Majefty's affent, and by the national legillation, but fhall ftand as they did ftand as the law of the realm in being at the' iQltant of the contrading. |.,lt is then the queftion, how far the laws * England affeft the cafe of the Romifh religion ? In England very much, if exe- cuted ; in the colonies fettled by ourfelves no notice has been taken of it: fo fomj 'Oi.>j penal t J2J 1 penal laws, in other cafes of trading prcv- perty and- revenue, have been very lighti^ enforced there formerly, even wheti the colonies have been expreffedly mentioried. But if the penalties of the laws are not felt by the profeflbrs of the Romifli religion in England, it is by connivance from hu- manity or policy, not to weaken or depo*- pulate, that the laws are fufpended but not abrogated. The firft thing that ftrikes upon this head, is an opinion, that the penal ftatute laws of England, in relation to religion?^ do not extend to the other Britiih colonicsi and fo it feems to be agreed by many; and that the Roman catholic worfhip and profeffion of it therefore, fub modo, and in a certain way, may be permitted, or rather connived at in them, without breach of the fundamental laws of England, under reftrii^ions, HngiDt .«. 1." •■- ■ ' ■ ■ ■■" ' ■■ If the €xercife of the power of the papal f(^e cannot be permitted in the ancient colo- ii I 122 J colonies of the crown by lifting law, it IS clear that it cannot be permitted in a new acquired colony, when the ceded co- lony is put by the treaty on the fame foot- •ng w.th the ancient colonies, by leaving •t to the laws of the realm. With regard to Canada, in the fourth article of the treaty it is declared, that Ms Smannic Majejiy fiall ghe the mojl effec- tual orders that his „ew R,„an catholic pbjeBs may profefs the worjhif of their reli. gm, according to the rites of the Romijh church, as far as the laws of Great Britain Perm.t.\&^ the artitle in the French language, for the greater clearnefs and p-ecifion m arguing upon it. Sa MajeJlS Brttanniqne convient daccorder aux habi- tants de Canada la liberti de la religion ca- tholique, en confequertce elle donera les ordres les plus precis et les plus effeBifs pour que fes muveaux fujets catholiques puifent pro- leffer le culte de leur religion felon le rit 4 '"/"!" tr<^fita: tam ecdefiaftici i^om ficulares btnis fuU uniwrfis et bono, riius tutofacat}quefruantur atque religionU Romana^ cat holk vene and ftand before the prince again^ the people, ncr before thature of things, to make any change i|i the; ecclefiaftical eftabUlhment« already in the colony of Quebee. ai^i,, o !|rh 18 ^ great millake to fay, that all fyftems of religion are alike and indif- ferent. They are by no means fo in a political view. As true religion is a rea- fonable and well-grounded fenfe of hope and fear of rewafd and puniflbment in a future ftate, arifing from the belief of a fupreme all perfed being, fo falfe reli- gion* Qr fuperftition, as Plutarch defines »t^ is aiv,unreafonabIe and exceffive dread of invifible agents. The feelings of want, pain, and dependency upon fome caufe ■unfeen, fill the heart of the boldeft man, who is confcious of evil, at certain times With horror. Religion thus, whether true or falfej whethei" in reafon or in excefs, as a principle of adion, neceflarily unites itfelf with every fyftem of civil govern- ment ; becaufe every civil government is founded upon the fame common principle K 2 Wl th E 132 I with every fyilem of religion, the prinx:iplr of fear. Knowing the terrors of the Lord, iveperfuade men, faid the great orator and apoflle to the Gentiles. But religious laws have a double force, becaufe they apply to the hopes as well as to the fears of men; whereas the prohibitions of the civil ftate apply only to their apprehenfions of piinilhment^ It is plain, ther(?fore, that a religious fyftem may be calculated, and has been calculated, fo much more dazzling in its ceremonies, and fo much more effeaually operating than any other fyftem of the lame fort upon the hopes and fears of n?ankmd, that thofe men who have un- dertaken the application of this particular fyilem into their own hands, have been at once priefts and legiflators, in the firft in- Hance; and more than monarchs in the lecond. 1'hey have eftabliflied what Ar- chimedes fought for ; that footing upon lomething out of this globe on which to '•''■^' ••' raife [ 133 ] ralfe a machinery which might controul its movements^ and Ihake it to its center. In the fecond inftance, they have fo far afFeded all civil government, that they have raifed up an empire more lafting than that of ancient Rome, and moreexten- five than that of its arms, becaufe this power which operates on the minds of men, has a greater command and force than that which operates on their bodies. The miffionaries of the church of Rome, have been but the avant-coiircurs of the troops of princes profefling that fyfteni of religion : and the crofs, fet up to denote occupancy and conqueft, has rouzed, when military mufic has ceafed to animate the ferocity of men. Religion, or rather the fyftem of it, as a kind of mixed govern- ment, made up of fpi ritual and temporal influences, being thus become an engine of ftate in a certain degree in every civil government under the fun, it behoves all v^ife legiflators to be attentive to the ope- ration of it, left the machine being fo large K 3 and V 134 ] and weighty, when qfed by unfkilful hand^ bay overthrow that very govern- ment, and fubordination of civil life, which it id meant to fupporti for the legion of ecdefiaftics may prove as powerful in fub, verting, as in maintaining prince^ and ftates, like the prajtorian cohort of the Roman emperors, when they pleafe to be for or againft. It 18 the more neceflary to enter into thefe obfervations, becaufe the liberties of the Gallican church, in oppofition to the authority of the fee of Rome, make a parj; of the ecclefiaftical eftabliOiment of Canada!' md have gre4t confequenqes with refped: to your Majefty»s rights, ^.^The Idea of a church or religious aflb^ ciation, which is to beconfidered as an in^ dependent contraaing party, and whief enters into terms with the civil ftate as an ally, is a treaty offenfive and defenfive, which I have not yet met with in the code of p' [ >35 1 'df the law of nations. The ininiftersof Teligion certainly deferve the protcaion of the foveecign power and civil magiftrat^ ia the higheft degree, while they observe the iirft principles of .religion, humility, and obedience. But the moment they af* fume fupreme powers^ it becomes neccflary to controul them: and here I cannot but refer to a former report of your Majefty*8 advocate, attorney and folicitor-generaJ, January iSth, 1768, upon this fame fub- jea, t/jat if it is necefary that a perfin Jhould be appoint ed» as ftated, for fuper in- tending the affairs of the Romifi church, his powers Jhould he fo .checked and guarded, that no pretence may be afforded thereby to ^bjlru6i your Mdjejlfs fervice or due courfe eflaw i for if the perfon fo to be appointed Jhould be to judge himfelf what powers are mceffary to the exercife of that religion, he may^ affutm fuch as are not permitted by our Jaws, K4 The '^' The efficacy or inefficacy of certain ce, remonies, or opus cperatum in the hands or even intentions of the prieft alone, and juft as he Ihall pleafe to apply them, upon the happinefs or torment of men in a fut ture ftate, the dodtrines of purgatory, of confeffion, and abfolution, the authority of ccdefiaftical fentences, and the fupremp irrefiftible power of the triple diadem of the papal fee, not only extending to all , ecclefiaflical perfons and things which ne- cefTarily involve civil rights, but to the heads and necks of fovereign princes, are circumftances formidable and deflruaive to every government, more efpecially to any government which is of a mixed form, and under which the fubjed: lives in a ftate of civilization and knowledge. Thefe are juft reafons for which a fyftem of fuch a nature cannot be fafely tolerated in refpea: to certain parts of its dodrines. And therefore when the increafe of learning, and confequently of free refledion among Jhe inhabitants of Europe, introduced a reformation [ J37 J feformation of religion, the ftatute of I Eliz. cnap. I. was made in thefe kingdoms, in diredt oppofition to the firft principle of religious dodrines of the church of Rome, viz. the pope's fupre- macy. The fixteenth fedion is as fol- lows. To the intent that all ufurped and foreign powers and authority fpiritual and temporal may for ever be clearly extinguif}'- ed, and never to be ufed or obeyed within this realm J or any other your Majejiys do- minions and countries that now be or here- after fhall be; but from henceforth the fame fiall be clearly abolijhed out of the realm and all your Majejiys dominions for ever. Any ftatutey ordinance, cujiom, conjlitutions^ or any other matter or caufe whatfoever to the contrary nofwithjianding. This ftatute is fo plain and explicit, and is fo fundamen* tal a part of the conftitution of this king- dom, and the power therein declared fo in- defeafibly inherent in the crown of thefe realms, that for your Majefty to confent to any a(5t of legiflature which fhould to- lerate I '33 ] aerate fuch parts of the Romifli religious iyllem as are before recited, would be to abdicate and renounce the right of your own fovereignty. If your Majefty were to conquer a country of infidels, profeffing the religion of Mahomet, that religion, if it were to forbid obedience to or keeping faith with Chriftians, would by law be ab- rogated ipfofaSio : and fo my lord Coke lays it down in Calvin's cafe * The let- ter and fpirit of the laft recited ftatute axe £o applicable to the ftate of the Romifli <:lergy in Canada, that it feems neceflary to conclude with a former report f of yojir Majefty's advocate, and of the then attor- ney and folicitor-generals t, that your Ma^ jefiy^ as you are n$t bound U prshibit the forms of worfiip of the Romijh church hi- therto by ufage eftablijhed in Canada^ fo your Majefty is at liberty to tolerate thofe forms ^ * VII. Rep. t Vide the Report in the papers referred to 1 8th January 1 768. J De Grey and Willes. ^ii^i • : and t »39 ] and Jh far and infuch a way as not to vh- late your toyal Jupremacy over all per fins ^ and in all caufes chil and ecclefiajiical. And your Majejly may^ the better to attain that endt regulate and rejirain the profejpon of the worjhip of the church of Rome. The board of trade have reported * in their own own opinion of the treaty, (a conclufion adopted by them upon the reprefentation of general Murray, which is annexed to the report) That it is necejfary for the due execution of the treaty of Par is ^ that a pro- per perfon he he licenfed by your Majefty to fuperintend the affairs of the Romijh church, I cannot help exprefling with all dufe fnbmiflion, my doubts of that neceflity, (grounded upon the notion formed by ge- neral Murray, or by any other perfons of that treaty) being extended to an a£tual popifli bifhop and his coadjutor. "^'■ Firft, Becaufe I am informed from good authority, a fynod of the provincial parifh * Article II. of the Report of the board of trade. 8 prieils. ( 140 ] rriefls, elpccially with a clean a>,d chamcr ^t their head, who cau name by the eccl«. l.aft.cal law of France a grand vicar to ^dmniifter to the diocefe, and who would be more immediately dependent tipon your Majefty than a biflxop, would have been pcrfeaiy agreeable to the Canadians ; ,h« iueh a perlor,, and fuch an aflembly would have regulated the eccleiiaftical police and exercile of the religious ceremonies, to ^11 ufeful mtents and purpofes, ordinatioa excepted. That as the livings are good, ^d muft encreafe with the peace and c.rf. t.va.,on of the colony, the Canadians ought not to have thought it harder than the clergy of the church of England, eila- Wiilied m Virginia, and the r, ft of our colonies think it to crofs the fcas; they ra.ght be ordained in Portugal, at a Britifl. faaory; a conveniency which they have by means of the fhips, which go thither m fuch numbers with cod-fi(h : and if there are not Canadians enough to fill up *he vacancies, on the fame being certified by r 14' ] by the governor to yolir Majelly's i^cH^i* tary of ftate for the colonies, every year, any Swifs Roman catholic clergymen, re- tfommcnded by the Britifli rcfident in the cantons, might be fent over to fill the liv- ings; about fix in a year are judged, ori good authority, to be iufficicnt. As Ro- mifii clergy are at prefent imported, it is obvious, that its lefs proper that the bifhop fliould import them from Old France into the colony, than that your Majefty's go- vernment fliould export them thither from other parts of Europe. Secondly, That a I jp is neceflary to keep up the dodriiud of the political power of the court of Rome is very clear : but not fo for the exercife of the vvor/hip. In this view, therefore, both the capitulations of Quebec, and Montreal, have rejeded the propoiition of a bifliop being con- tinued. And by the fixth article of the capitulation of Quebec, the biiliop is only 'to exercife his funclions uith decency in the interval. t 142 J interval, urnll the pojfeffton of Canada h 'decided. This being decided, the inference of the capitulation is, no epifoopal func- tions are to be claimed any longer than that interval by virtue of the capitulation. The twenty-ninth article of the capitula- tion of Montreal, and the province, on the demanding part, admirably points out how theecclefiaftical law of the church of France furnifhes the belt fuccedaneum for a Po^ pilh bifhop, by a vicar-general of the dean and chapter, as having the cuftody of the i^vc:\\Mz}izfede 'uacante-, this article is granted, that the vicar-general Jhall ex* ercife them accordingly. The thirtieth ai- ticle was refufed : and it points out the real view of the ecclefiaftics who dilated the propofal. It was a very infolent and a very dangerous one : that the King of Franct Jhould name the bijijop for ever* Father Charlevoix fays, b. ix. p. 406* that after great conteftations between the court of Rome and thatof Verfailles, it was deter- mined that the biihop of Quebec fhould hold 143 ] hold of and be dependent of the fee of Rome. However, the bifliop*s fee, in or- dier to umte it with the clergy of France in temporals, was endowed out of the* abbey of Maubec : and the abbey of Bene- vent was united,, part to the bi£hopriek> and part to the chapter of Quebec. Whe- ther thefe endowments irt France are con- tinued now to the biihop, by the French court it does not appear : nor who named the prcfent a^ual bifhop and his coadjutor to the pope. But moil undoubtedly ia view of the capitulation and treaty, as far as the lame extend in terminis, I do not conceive that the prefence of thofe perfon& is i(>necejfary a cafm foederis, but that they may both be recalled by your Majefty, and moft certainly the coadjutor, without the breach of treaty; becaufe their eftabliOi- ment in the province with fuch political conneaions appears to have a manlfeft ten- dency to keep up a treacherous intereft in- dependent of your Majefty, and advanta- geous to the future views of any enemies of [ Hi ] of your crown: a danger to which it can- not be the true meaning of any treaty, that your Majefty fhould be bound to ex- pofe yourfelf. But if, from a ftate of fafts, it fhould ' appear, that a tacit permiffion is more dangerous than an adual royal commiffion would be with limited powers, either that permiffion muft be withdrawn, or it may be enaded, that a perfon may be licenfed by your Majefty to confer holy orders upon candidates for them, natives of the faid colony, and f2o others ; (without this reftriaion it is obvious, that he will be- come an efFedive popilh bifliop for all your Majefty's colonies in America indif- criminately) that he fhall be removeable at pleafure ; that fuch perfons fhall have the title of your Majefty's Superintendant Kcclefiaillcal for the Affairs of the Chriftian Church in Canada; that no other title whatfoever, fhall be ufed in any public innruments; that he fhall enjoy the re- venue t HS ] Venue, habitation, and other emoluments, as heretofore annexed to the office of bifliop of Qijiebec, during your Majefty's pleafure: that he ihall not have any delegated per- fons under vicarial titles, nor official, nor any other officer of contentious jurifdidion, nor any coadjutor : inafmuch as fuch co- adjutor has his firft appointment by the dired authority of the papal fee. By th': ^ ^pal canon law, the coadjutor of an aclaai bifhop of a diocefe is made bifhop by the Pope*s bulls, by the title of fome fee inpartibus infidelium; and T<7't, by illnefs or a^e, the bifhop of the diocefe cannot exercife his jurifdidion and func- tions, the coadjutor exercifes them as if he was adual bifhop. But when the bifhop is capable of ading, the coadjutor has then no more authority than a grand-vicar *. * Fevret traite d' abus torn. i. 1. iii. c. 4, n. 23. Arret 25 Fevrier 1642. Journal des Au- diences, torn. i. c, 89. L It r 146 ] It is a fl«a ftated, the truth of which deferves to be enquired into, that a coad- jutor or Tirovincial bifliop, Mr. D'Eglis, has already received his bulls from Rome' been confecrated in France, fo late as the 12th of July laft, and is now in aclual exercife of his funflions at Montreal. And It ,s alfo material to enquire, inaf- much as according to the laws of France, an oath of fidelity to the French king wa.: nece(ra.y at his confecration, and the bifliops in France are direOed to regiiler their oaths in the Qiambre de Comptes at Pans, whether thefe oaths of fidelity to the French King, have, or have not been taken, both by Mr. Briant, the bilhop of Qiiebec, and D'Eglis his coadjutor; and whether the fame have not been difpenfed with by the Pope, although incompatible with the oaths of allegiance to your Ma- jefty : if anyfuch are taken to your Majefty. It would be proper to be enafled, that no ecclefiaftical ccnfure, interdia, excom- munication, t '47 ] munication, or other punifliment whatever, fhall be paffed or inflidted upon any of the clergy of the faid province, unlefs for im- morality or negled of the ufual duties of a parifli prieft, articles being firft prefented againft him by any of the churchwardens, or two of the parifhioners, houfliolders of the refpedive parifh of which he is the ading prieft, to the faid fuperintendant, who fhall, under his hand and feal, certify the prefentation and tranfmit it to the chief juftice of the court of King*s Bench, who fliall proceed to a hearing thereupon by production of, and proof by witnefles viva voce, as in other criminal matters againft the peace; and fhall fine, fufpcnd, or de- prive, abfolutely or pro tempore, as to him fhall feem meet; excepting, that no line fhall exceed the value of one year *s income of the benefice : but that the whole bufi- nefs of the faid fuperintendant fhall be confined to the ordination of the eftablifhed clergy of the provincial inhabitants, and to his own proper functions as a prieft, re- L 2 fpeCting [ .48 ] fpedling the facraments and facramentalia, or religious ceremonies thereto belonging. The lefs objedions can arife to this re- ftridion, becaiife it is ftated in the Report of governor Carlton, and of the chief juf- tice Mr. Hey, that there was no tcclefiajlkal court in the colony *. By which I muft un- derftand that there is no court of an official \ and which, if it means that there was none before the conqueft, is a fad: very fingular, becaufe fuch jurifdidion is incidental to the fundions of epifcopacy ; although caufes teftamentary and of marriage make a part of the civil jurifdidion in France: and but for that report it would be a fad incredible In any religious cftablifhment of powers in church government, cfpecially in the church of Fvome. By the canon law of France the official is an ofHcer appointed at pleafure by the biihop, to exercife his jurifdiclion, which * Inclofure I. No, 23. 1$ [ 149 ] i« called contentious, that is, in civil and criminal caufesj yet he is faid by the French lawyers to be ojjicier de Veveche et non de reveqiie. The voluntary jurifdidion of the bilhop ex gratia, is exerciled by the grand vicaire, as the bifhop's deputy, viz. in the exercife of his vilitatorial functions, dif- penfations, inftitution- licences to preach. The courts of the official in adions purely perfonal, where a layman is inte- refted diredly or indiredly, are prohibited by the civil jurifdidlion; and by the four firft articles of the ordinance of 1 539 ; and J)y rhe appel comme a\ibus. Criminal cafes, fuch as rape, &c. which are punifliable by the civil law of the realm, cafes ot damages, even between ecclefiaftics, are not triable by the ecclefiaftical courts of France, but by the civil powers. The fad, taken as ftated by the chief juftice, fhows how infinitely jealous the French government muft have been of the power of the bifhop, to fufFer him to have L 3 no L '50 ] na ccclefiaftical court : however, I am much difpofed to believe that there i& fomething not clear in the expreffion of the chief juftice; for though the bifhop has no court or official, yet I imagine that he ads judicially, or rather extra judicially^ himfelf in per/on, or by his gr-^nd vicars- general, which is fo much ivorfe for the provincial clergy, and province ; and which is illegal by the ecclefiaftical law of France, as the grand-vicars have no con- tentious nor criminal jurifdidtion. For in fome papers of authority which I have read, a whole village, after having been threatened by one of his vicars to be put under an interdict, upon account of one parifhioner, it was carried into execution, and with great difficulty the interdid taken off by application to the bilhop, who fup- ported his vicar for fome time. This was a proceeding the more extraordinary, be- caufe general interdids of places and in- habitants are not permitted by the laws of France. In thefe cafes, rappdcommc d'abus^ [ '5' ] Xir tlie appeal for a grievance, is allow- ed : and fuch an attempt as a general in- terdid is held to be contrary to the liber- ties of the Gallician church *, It is alfo a certain fadl, that burial in the church-yards has been denied to Pro- teilants. ^// the necejfary authority ^ fay the go- vernor and chief juftice, y£?r the reparation of churches and the enforcing the payment cftythes by the French government, vefied in the intendant of the province , and this autho^ rity, fay they, Jhoidd be lodged in the go- vernor only^ to be exercifed by him upon prin- ciples of political prudence. The intendant had this power, as reprefenting the King as head of the church in temporals. The plan of the board of trade fpeaks of a provincial commiflary, which office * Vide Liberies d'Eglife Gallicane par M. Pi- thou. L 4 it I 152 ] it recommends to be aboliihed. I tafc^ him to be a civil magiftrate, becaufe I find nofuch officer of ecclefiaftical jurifdiaion in the French law-books. It feems extremely important to fee how. far the civil and fovereign power of France reftrained the ecclefiaftical; brcaufe in this province and the other ceded dominions of France, thcfime reftrainmg poivcrs may be life d by your Majcjly^ mojl agreeably to treaty: and becaufe, if they are not ufed, the eccle- fiaftical and fovereign power of the fee and Court of Rome will be in a more flourifhing and formidable condition now fince this colony has been ceded to, the crown of Great Britain than it was under the French government j which I conceive cannot be permitted by the law or policy of this realm ; becaufe it would exceed the treaty, and would admit the whole of the church difcipline and government eftablifhed by decifions of the council of Trent, which never were ad- mitted to be valid in France, and becaufe. the [ >53 1 the outward government of the cliurch is by the law of France vcflcd in the foVe- reign, the King being, as the French law- yers fay, tm veritable eveqiie an de hors di feglife^ comme les evcqucs font les princes en ce qui re garde I intcricur. It appears by the French king's com* miffions at the firll eftablifliment of the province, that the power of the biihop was to be carefally reftrained * from touching ^he patronage of thofe benefices which were in the hands of lay perfons and feig- peurs. It is ftated, that the g -eateft part of the benefices are now in the prefen- tation of the bifliop of Quebec ; and that the policy of that fee has been, and is, to * Vide Arret ilu Confeil, d'etat du Roi du 27 Mai, 1699. Ordonnc que I'Evequc de Quebec ne puifle empecher les feigneurs des paroifles et des fiefs, qui en auront commences d'acheverles eglifes, \\\ meme ceux qui auront r.mafle des mater! aix, de les conflruire j les quels jouiront les patronages des eglifes en confequence de I'edit du mois de Mai, 1679. '. nnt -r I '54 ] put all vacant benefices in fequeftration, fo that there arc not more than eight or ten clergymen who are actually in full poilcf- fion of benefices j which method gives the bifhop the greater authority over the per- fons of the clergy, making them lefs to affimilate with the people by frequently removing them from their familiar friends, and flocks, and from one part of the pro* vince to the other ; fo that they are always in a ftate of miffionaries, under the direc- tion, and dependent upon the will of the bifhop ; as fo many military detached par- ties under the orders of a general. This muft be an intolerable grievance upon the Canadian lay parifhioners, and the perfons of the clergy themfelves, and a proceeding very dangerous to the new governing civil powers. This pradice was illegal, even under the French government. The edid of the French King, May 1699, may be proper to be adopted in part J [ '55 J part ; it runs as follows *. At the requcjl of divers lords of manor St and inhabitants cf New France, it is ordircd, that the clergy having benefices with the cure ofjhulst Jhall be fixed, infiead of the pritfis and curJs 'who 'were removeable at the pkafure of the bijhop j * Edit du Roi, du mols de Mai i".'9, (RA. fo. 79. R'^,) AMa demaiule dj i'ivers -.ligneurs U. habitants de la Nouvclle-Franr'u ordc ne que les cures fcront fixes au lieu de pr. cs & cures amo- vibles, 2c qu'il Icur appartiendra les dixmes ruivM.nt les regjemens du 4 Scptcrnbrc 1667, h qu'il fera au choix de cliacun cure de les lever & cxplo.ter par fes mains, ou d'en faire bail a quelques particuliers habitants de la paroilFe j U. que les feigncurs du fief ou eft fituee reglife, les gentiihommes, olBcicra ni les habitants en corps ne pourront en ctrc les preneurs dircdlement ni indire(5lement. Que le feigncur du fief fera prefeie a tout autre pour le patronage, pourvu qu'il fafle la condition de I'eglife egalc en aumonant le fond & faifant le frais du batitnent, auquel cas le patronage demeurera at- tache au principal manoir de fon fief, & fuivera Ic poflefleur, encore qu'il ne foit pas de la famillc du fondateur. Et que la maifon prefoiteriale & cimetiere feront fournis & batis aux depcns dcs feigneurs & des habitants. that [ 156 ] that the parochial tithes Jhall belong to them according to the regulations of ^th September ? 667, and that every parifh priefi Jhall have it in his option either to take them in kind, or to let them to any private perfinsy in- habitants of the parifh I and that the lords ef the fief in which the church is fttuated, gentlemen, officers (civil or military), and the whole body of the inhabitants together, Jhall not be the takers direSily or indireSlly. that the lord of the fief Jhall be preferred to every other perfonfor the patronage of liv^ ings, provided he gives an equivalent tQ the church, by endowment^ and payment of the charge of building ; in which cafe the ad- vowfon, or right of patronage' and prefent- ation, JJjall retnain appendant to the prin- cipal manor of his fief, and Jhall follow the ferfon in poffefiim thereof, although he Jhall not be of the heirs of the founder. That the parfonu^e-houfe and chur^^h-yard, Jhall be provided and built at the expence.of the lord and the inL.bitants. It may therefore be cnaaed, that every clergyman who Ihall ''iVii be be nominated by any patroo to an eccle-- fiaftical benefice, fhall have therein a com- plete freehold, as in another eftate, fubjefl: only to forfeiture by fentence of depriva- tion as aforel^id, or for treafon or felony ; and that no living fhall be held by fequef- tration, unlefs pending a fuit concerning the right of advocation or patronage, and that by authority of the civil court wherein . fuch right of patronage is tried, and for , the benefit of creditors. This is agreeable to the French ecclefiaftical law*. The fequeftrator, or perfon who xhall perform the ofEce of prieft while the living remains unfilled, fhould be eleded by the majority of houftioldei. of the parifh, and the elec- tion to be returned to the court, delivering a copy thereof to the feveral parties, and the judge fhall alTign him a maintenance. It is very flriking what Charlevoix fays, 1. viii. p. 339. T^e famous abbe Montigny * Vide lettres patentcs, du mois d' Avril 1695, art. viii. 1! li: II r >58 ] ^astbefirjt bijbop of ^ebec, I'he Jefuitii ^bofe injiitute will not permit them to accept an epifcopal dignity ^ were the perfons who thought a bifiop neceJJ'ary in Canada. They were the only priejis in New France. The parijh priejis ivere merely by commiffion moveable at the will of the bijhopy andfome-^ times of the feminary of ^e bee, who were themfehes^ and are fiill named by the direC" tors of the feminary of foreign mifjions at 'Paris. Things are but little altered (fays he) even fince the court had ordered that the parijh prifjls poould be fixed in Canada, as they are in the refi of the kingdom. They are very J^ar from being fo yet. So that as this whole colony in its prefent ftate is ab-^ Jolutely a mijjion^ and full of moveable regulars, it will be neceflary to fecularize them by ad of parliament, although the Pope claims this fole power. Yet it can be well done, as being confiftent with, and necejjary to the exercife of the Romijh reli* gion, inafmuch as the holding beneficially civil advantages, fuch as tithes, and things arifing t J59 J ariilng out of land, is a fecular or temporal right, being according to the .ideas of the Gallican church, not in the interior of the church, but in the exterior power and pro« tedion of the ftate. It is to be obferved, that the regular clergy, or clergy profeffing the rule or regimen of fome certain order, living in a religious community, and having gooda and lands either in full property or in tf uft (as the Jefuits) are in a peculiar manner the inftruments of povirer of the court of Rome, being lefs fixed to the foil, and lefs. conneded with the civil power and with the people, than the feculars or parifb priefts are. The ufe of thefe regulars in the firft cftablifhments of colonies by Roman ca- tholic governments, has been animadverted upon. It is erroneous to fuppofe, as it is fup- pofed in the fourteenth article of the plan of the board of trade for eftablifhment of eccle- fiaftical [ i6o j naftlcai affairs In the province of Quebfi^'j that the regular priejis cannot by treaty be excluded from the benefices ivhieh are in the patronage of his Majeftys fubjeBs, But they are, and muft remain excluded by the canon law, and the rules of their own orders, if they are left in the difpofition of the bifliop, for every regular h fervui monafteriis and can take no property fof himfelf, but acquires for his order * : all livings belonging to particular raonaileriea are held in fequeftration for the monaftery* and ferved by their chaplains or vicars J all vicars by the canon law of France are moveable by order of the bifhop. ]^y the edidl April i663f, it appears that the ccclefiaftics of Canada were allmiffion- aries, removeable at the will of the bifhop, * Ce qui eft acquis par I'efclave appartient a fon nuicrej ce que le religieux acquiert devicnt un bien de fa communaute. Vide M. Louvret, Lettrc k. No. 4.2. f Vide p. 2. printed Edicts. In [ 16, i ^fi the iirft fettitig Dp the ctflony. So that they were all in fad his vicars, and hira- felf the tiniverfal teddr. The perfdns who are properly deftined in Old France for parifli livings are the fecular abbes, who are in a middle ftate between laymen and eccIefiaMcs, as candidates for benefices having cdre of fouls : and when they are in full orders, and have obtained benefices, ihey are called feculars, as if they were more worldiy than the regulars, and more efpecially than thofe regulars who form the miffions, and^ who profefs Vpws of poverty, and hold nothing but as curators in truft for the community to which they belong; in the fame maniiet as the Jefuits hold for the body aggregate of their order, wherefoever diifperfed, and \inited under their refpedtive head or general who refides at Rome. Every religious or- ider and congregation or community of fe- Cular ecclefiaftics have their general *. * Pere ThomafRn, de la Difcipline Ecclefiafti- ^ue, torn. II. partie iii. litr. i. chap, xxxvii^ No. i. M This ■ i|'B|l f «6» I t^ This capacity of the regulars to hol^ benefices is a point which is material as to the fad. For the plan of the board of trade, Article IL propofcs, leaving the Men- dicant Friars^ called Recoil c 51 s^ to he (mtinu-^ ed tnfupflyfor the prefent the vacant bene^ jices. But they cannot hold them ; as it a^-* pears fron^; ^}\^ nature of therr inflitutioit. This propofifioa, perliaps, explains the prefent ftatc c; Mpofition of the ecclefiafti- cal beneficet, in which it is faid upon good authority, that the bifhop (who is a native of BrJtany, and under fuch oaths as all other bilhops confccrated in France muft take upon their confecration there) does what may prove very dangerous to the fafety of the Britifh government ; he fends for his clergy from France, inftead of pre- ferring the native Canadians, under a fug- gcltion til at there are none fit among the perfon'3 educated in the great feminaries there ; and that he fixes no clergy in their benefices, but puts all the livings in fequef- tration. In that way to be fure they may be fcrved by reg al .irs. , w 1 muft obferve, that by the laws of France, the religious who are mendicants cannot be in full pofleffion of benefices> having cure of fouls, not even of a bene- fice belonging to any regular community : but they may ferve it by permiifion of the bifhop, * T/ie officers of the crown are to dijpoffefs them if they hold them, any difpsn- fation notwithjianding* The bifhop's power, on the prefent foot- ing, if permitted, becomes immenfe : the Rate of the provincial clergy reverts to the firft eftablifhment in 1659, when, as tharlevoix fays, the new clergy ferved the jparifh only by commiflion, (b. viii. p. 340.) and all the political inconveniencies * Les rellgicux ne peuvent etre cures en titre meme d'un benefice regulier, mais ils peuvent le deflfervir avec la permiffion de Tordinaire, Les rcligieux mendians ne peuvent pofleder au- cun benefice, et il eft enjoint aux officiers Royaux de les depofleder non obftant toute difpenfation. Ordonnances de Charles VII. 1443. Liberies Gal- licanes c. 7. Tournet Lettre B. c. 41. M 2 follow r r«« I follow which have been ftated, and #liicli: the Britlfll civil government would wifli to obviate. A coadjutor ready to keep up the fuccefllon; a popifh bifhop, born, educatedy confirmed, and confecrated in a foreign country, the natural enemy of your Majefty^. bound by no oaths of indifpenfible allegi- ance to your crown, open to the temptation- of a better foreign fet upon tranflation, by the intereft of a fovereign who may wifli in a future war to recover his dominions; form, even in the opinion of fome of the Canadians themfelves, a center of unions a ftandard of combined forces, dangerous^ and formidable to your Majpfty's interefts,. and to the lives and fortunes of your Ma- jefty's fubjedSk It muft be ftridly underftood that the* objections here taken are not to abftradt religion, nor to men, but to things ; to ille- gal powers, and to a chain of dependence and connections £[>rand hollile. The [ i^S ] Tiie diftindion taken by the French lawyers, in their writings on the French ecclefiaftical law, between the authority of the fee of Rome as the firft bifhoprick, and of the court of Rome as a fovereign power, defer ve the greateft attention here. It is certainly for the intereft of the per-^ fons inverted with epifcopal authority in the province, to conduct themfelves now in the moft inoffenlive, and even flattering man- gier : but the moment hoftilities ihall be- gin between Great Britain and France, ^hey will have the whole province in their hands. The few Britilh troops feparated at a great diftance ; the men becoming al^ mqft aU of them converts to the Romifli religion, by niarrying and dwelling among the inhahitanta; Montreal with a wall of earth only oi^ one fide, not better than an encampment ; Quebec without a citadel, (the neceflity of which is ftrongly yeprefented by general Carlton * ) the .,.^* Inclofure, letter to the earl of Shelburne* ■ * i ■* l! • " M 3 works; [ i66 ] works weak and /uiiipfl 'n the late ficgej^ twenty thoufand ^' . Tanadians, vete- ran foldiers, rencby to take arms ; are cir- cumftances full of danger : and there is no retreat, until the arrival of a Britifh fleet and reinforcements, to fave the provuice, or even the lives of the Britifh fubjeas. Thefe fa^s being indubitable, as ftated, one may venture to fay, in cafe of a war, a marihal of France with a baton in his hand, would not be fo dangerous in the province as a Romifh native born French bifliop, with a crofs and his coadjutor. The fate of *he Britifh troops and their governor would probably refemble that of the Auflrians at Genoa : and one nighr poffibly through all Canada might repre- fent that of St. B . tholomew, t e maffacre at Paris. No complaifance to the zeai of per- fons of devout fentiments in the pro- vince, edified by the confol ^n f a falfe religion;; no temporary fl li of go- verning by means of a power, which, like a rpcar, [ >^7 ] a fpear, will pierce the hand which leans .upon its point, can juftify a meafure, which muft be weighed in the fcale of great, le- gal, and moil extenlive policy, before it can be permitted, as I conceive, to be adopted in your Majefty *s counfels as a part oi the ecclefiaftical eftablifhment of your Majefty's realms. There is but one event, ry remote In- deed and uncertain, which can render the meafu a tolerable : the poflibillty of peace with France for half a century ; and that j^uring fuch an interval, a bilhop of Quebec ^nd Us udjutor, by the influence of due mc^'"' of convidlon, may happen to feel th prop*-' yo conforming to the church of Englauv^. Here then the epifcopacy 6f the church ol England would be graft- ed on the flock of the Boman catholic in America ; and a limited ecckfiaftical power would coincide with the powers of iiOiited monarchy in .< pruyinn- the con^ ftitution uf which, as welJ a^ t,he tjpmp r M4 of w f( "68 } ofijijif; people, U freer than the rcflh of the. Bfjitl/h American colonies are from de-? rapqratical principles. This is a confum-^, mation devoutly to be wifhed for, but little to be expe<^ed. Befides, the clergy, ftridly fpeaking, call- ed regulars in the fyllein of the Romifh church, there is another kind of regulars who belong to collegiate churches, fuch as. prebendaries, canons regular, &c. Thefe latter, by the Popifh canon law, can hold ccclefiaftical benefices with cure of fouls in full property ; they have a rule of order, or regula vitsE direCtiva, but it is lefs ftridl, therefore the pope can grant difpenfations. The cafe of the communities of deans and chapters refembles the cafes of the Bene- didin and Bernardin orders, who do not profefs poverty, and who are monks ra* ther than religious : for there is a great dif- tindion in the canon law. Although both monks and religious are regulars, the reli- gious f '*9 ] gkyxis are not monks *' but mendtcAnt%^ The religious (projicrly fo called) a^re to iiave nothing but yidtum et veftitum, and take the vows of chaftity, poverty, and obedience : (which is the cafe with the Jc* fuits.) The Jefuits and Rccolleds (confider- ed as feparate members of their order) are mendicants, by the bull of Pius V. i 571 ; though the general is not a mendicant, ttnd t;hough the whole order does not adually beg, for which all property is holden by the members, In the orders where the members profefs poverty, the pope cannot ^ifpenfe; they can only hold as fequefta* tors or vicars. The rule is regularia regu- laribus^ fecularia fecularibus. However the pope difpenfes with this rule, fo far as to give regular benefices to feculars, that is benefices of an inferior order to ecclefiaf- tics of a fuperior, out of compliment to perfons of family and dignity : aud fo the laws of France admit of this difpenfation ; * Vide Denyfart, word Moin; , fee. 2. but * but he cannot allow regulars to take feeua iar benefices ; and left this law of the Ror mifli church, which is of fo much confer quence to undexftand the ecclefiaftical ftate of Canada, fhould be doubted, I quote the authority of the canon laws, C. i. Ext. Cum ad Monafterium. 6. c. Quod Dei eoi- dem. Vide Arnoldi Corvini de Belderen Juris Canonici, lib. !• tit. 26, p. 48. Ed. plzevir, 1672, If it ougbt to be one of the principles of the new legifiation in Canada to fup-r prefs the miUtary and monaftic fpirit, and to encourage the commercial, it cannot be confiftent with the principles of the latter to keep up the ponv^nts of women any more than thofe of men, under any notion * of fuch inftitutions being a neceflary provi- fion for daughters and younger fons of the ancient noblefle of the province. The fpirit of monachifm and military fervic? Report of the follicitor-general. have [ >7i ] have gone hand in hand in the feudal hif*^ tory. It is unhappy for mankind that there remain fb many traces of it. I am well informed that the noblefle by patent are without titles, and generally without lands, numerous, and poor * : but elevated above trade, which is fuppofe^ to have difgraced the anceftors of thofe who acquire thefe patents. * Les arts fedentaires de la paix, les travatpc fuivis de I'agriculture ne pouvoient pas avoir d'at- trait pour les homines accoutumes a une vie plus a£live qu'occupee. La cour, qui ne voit ni ne cou- iioit les douceurs et I'utilite de la vie ruftique, aug- menta I'averfion que les Canadians en avoient con^u, en verfant exclufivement les graces et les honneurs fur les exploits guerriers. La noblefle fut I'efpece de diftin6lion qu'on prodigua le plus, et qui eut des fuites plus funeftes. Non feulcment elle plcn- gea les Canadiens dans I'oifivite, mais elle leur donna encore un penchant invincible pour tout ce qui avoit de I'eclat. Des produits qui auroit du etre confacres a ramelioration des terres furent prodi- gues en vaines parures. Un luxe ruineux couvroit une pauvrete realc, Hiftoire Politique. Tom, vi. p. 157' The f ?7? ] V *fhe moft diftinguiflied perfdns in Ca- riada (for they cannot be called noble in ^he fame fenfe as we ufe the yvord nobility in England, but rather as yeomanry, or country gentry) a^e the poljeffors of fiefs, gr lords of manors with patents of nobi- lity. There are not any real ancient French ^iobility wii/i titles in the province. It appears, No. II. Appendix of the In- clofure of the board of trade, that the nor (jility refident in the province, amount by general Carlton's account to feventy-fix who have ferved as military, and forty- four who have never ferved ; they almoft ^11 are, as I underftand, by patent, and very few by the right of their fiefs, as being noble fiefs, that is to fay, as having a jurifdi cultivation. If they were doubled or trebled, this nol^lity would be very incon- fequentiah As to the patent military noblefle with- out property, they are very dangerous per-^ fons to ftay v. the colony. They have loft every thing, and have nothmg to hope under your Majefty's government. Thefe fiefs and feignories, as general Carltort ftates them, like their nobility by patent, are divifible ad infimium.' It muft be dc*/ icntal to the province to maintain thefe conventual inftitutions, with a view to the noblefle or any other jperfons or objeds, as places of education for [ '75 J fof felther fex. Convents form the Woffli of fchools; being only nurferiea of bi- gotry, ignorance, idlenefs, and averfion to the civil power. It is fufficient alfo to fay in point of morals, that a conventual life is an unnatural ftatej and the pro- feffion of vows renouncing marriage, or a folemn obligation not to continue the hu- man fpecies, is fo far from virtue or reli- gion, that it is a crime againft the ftate, which it deprives of fubjeds; and pro- dudive of fecret vices, which are the dif- grace of human nature. That nuns, as it has been urged *, are necefTary for attending the hofpitals, is not a fad, for they may doubtlefs have other nurfes; I do not comprehend that it is necefTary that a young man who is par- tially fick fhould be attended by a woman who is devoted to a fingle life: nor do I conceit ^hat widows and married women * Vide M. Lotbl.'iiere, Art. LXXIII, are t 1 178 ] 4te \ets proper to aflift iti thefe charitie«s iand to fit up all night at a bedfide) thaii k Womin who is young, and who is fup^^. jpofed not to know the effcntial difTercnce 16f the fexes. Widows and married wo- hien may devote themfelVes to an attend- ance upon the ficfc^ if they pleafe, upon principles of teiigioh J if thty do not, it appears to me, that publi'c gdvernment ought to pay the expence of riurfes and matrons, and not fuffer the eftabiifhiiients of religion and charity to be turned into 91 convenience for vice-. There are fufficieht precedents that th^ royal authority in France , has fubjedled the admiflion of members in the religious communit" "S to fuch reftridion as the So- vereign thought ^t-oper* Declaration dii Roi, 10 Fevrier 1742, regiftered in the grand council 2d March, and in parlia- ment 29th January 1745. By the royal cdidt, March 1768, not only the numbers of monallie houfes in Paris, and cities and towns [ m ] towns in the French dominions arc retrain- ed, bu' the numbers of perfons to be ad- mitted are alfo limited *. Some monafteiies have been fuppreffed ; and the remaining members fent to lodge in other religious houfesj where there was a vacancy in the number of members. By the Capitu- laires of Charlemagne, agreeable to a law of the emperor Valens, no perfon could be admitted to take the vows without the licence of the prince. Many other Ro- man catholic Sovereigns dnd ftates have exercifed this reflridlive authority, and have alfo fuppreffed .Tiany religious houfes^ without waiting for i lie death of the members. The fame law of France which acknow- ledges in the fovereign a power to pro- hibit the eftablifhment of any community^ or other religious houfe, without his per- miffion, by confequence acknowledges his r. * Art. 9, 10, N power i! m ( >78 J power to forbid any other members being- admitted into the communities, or religious houfes, already eftabliihed, and which were originally fet up by the ad: of royal au- thority. Suppreflion and diflblution fol- low of courfe from the prohibition of new members. It may be enaded, therefore,. conjijiently with the law of France, and therefore without breach of the treaty, or the law of nations, and without cruelty to the prefent parties, that no new members fliall be admitted into monafteries or con- vents in the province of Canada; but that all thofe monaftic communities, after the death of the prefent members, ihall be de- clared to be dijjbhed, fo as no longer to be confidered as communities or corporate bodies Having legal e fence : and that the prefent members of the communities of priells Ihall be declared to be capable, although icgulars, by virtue of an adt of parliament, to hold in their own right the feveral eccle- fiaflical benefices having cure of fouls> being thereto prefcnted by the refpedive patrons, w% [ 179 1 Jiatrons, without any farther form of in- ilitution or indudion bein^ aeceflary. Inafmuch as by the ecclefiaftical law of France, the King is the head of the na- tional church, in all external and temporal matters, as well as protestor thereof in fpi- rituals, the houfes, lands, effeds and revenues, of the faid feveral communities^ whether of men or women, profeffing the rule of any order of the Romifh churchy may be declared to be immediately vefted in your Majefty, your heirs, and fucceflbrs, in order the better to preferve the property of the fame, for the ufe and greater benefit perfonally of the prefent adual members thereof, and be made a part of the receipt of the revenue of the faid province, receiv- able and accountable for by your Majefty^s receiver-general, under the title of the Church Revenue of Canada and Quebec; for the purpofe of applying the fame in the following manner j to fupport the re- fpedive hofpitium, or religious houfe, and N 2 to 'i* [ ,80 } ta pay the iifual pcnfions, with benefit of accruing and furvivorlhip, until one half of the members of the laid communities fliall depart this life; and from and after that time, to divide the furplus, without farther benefit of accruing or furvivorihip, among the men or womea of tlie faid convents, during the life of any fuch perfon, fo long as he or fhe fhall remain in the province; and not- withftanding that he or fhe Ihall be otherw'fe provided for, the men by marry- ing, or accepting; any ecclefiaftical benefice having cure v^i ibuls, or any lay office,, civil or mill ary, or the women by marry- ing, or quitting the convent of their own< free will ; provided that no new member Ihall be hereafter admitted, or entitled to any penfion or benefit, but fuch only who vv^cre admitted previoufly to the time of the capitulation J or who are members fmcc admitted, and now refident in the faid religious houfes, or within the pro- vince at the date of this a^:. No perfons. being - ,t '[ 8 1 'being ftriaiy ent' ed to tbt; benefit of th^ capitul.aion and treaty, but fuch peribns who were objcccS of acjn, rcfidcnt in the colony at that period, in the \v0rd3 of tlie treaty, as . ' abitatits who luid heenji ,cdU of t- mojl Chrijlmn King^ and who hrd leave. to retire. And, agreeably to the ip of the tiiirtecnth article of the board of tra for the furti cr purpofe of teaching fchooi, A endowment of any churches, which hereafter ma^ built by licence of the chief governor c i the province for the time being, and for the augmentation of the livings of fuch parities as fliall become more populous, and are not already fuf- ficiently endowed; and for the building and repairing of the houfes of the clergy- men and parifh churches without burthen to the parifliioners, as to the faid governor for the time being fliall feem mett ; alfo for the maintenance of any I'eminary which may be held neceflary, for the pur- pofe of general education of Canadian iBritifh fubjects in ufeful learning without N 3 dif- IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 Ik ■10 1^ m us IM il^ III 1.4 2.0 1.6 e o^. Photographic Sciences Corporation # V ^ \\ % -i^ ^>. ^ Tn"' ^"^^ rv« '^^ 23 WEST MAIN STRE£T WEBSTER, N.Y. 14580 (716) 872-4503 (/. '/.. a \^^^ %<" 9) I [ 182 ] cliftlnaion of religion. Alfo for fuch other purpofes of public education, or the relief of the province, as in your Majefty's, great wifdom fliall hereafter be fet forth, or found to be neceffary or ufeful : power ?lr ways being referved to your Majefty to grant any of the faid eftates of ecclefiaftical bodies, for the rewarding any commander in chief, or other officer, or foldiers, con-r cerned in the conqueft of the faid province, or others of your Majefty's faithful fub- jedts and fervants, for their public fervices. Part of the fourteenth article of the plan for the eftablifhment of ecclefiaftical affairs, feems proper to be adopted, viz. that none but natives of the province of Canada yZ>ij// be appointed to any eccleftafikal benejkes in the faid province, with this pro- vifo, that native born Canadians can be had, who are capable of the ecclefiaftical offices, in fpirituals and of the civil and tem- poral benefits attached to them by the ftate. That no miffionary clergy whatfoever Ihall be i '83 ] %(B fent among, or continue with thelndiatis, without being licenfed by the governor of the faid province^ and futh milTionary fhall write an account to him monthly of what pafles. Their names fhall be regiftered. - As it is faid upon.^oodauthority, that the prefent titular bifhop is himfelf a native of Britany, and is underflood togive great en- couragement to native French priefts to come into the province, which, if true, is very dangerous to the interefts of this realm, it may be proper to be enaded, that no fo- reign born prieft, of the popiih perfuafion* fhall come into the faid province without licence of your Majefty, under pain of at- tainder; nor fhall any foreign born perfon receive popifh ordination, or have any be- nefice, or being ordained, fhall remain in the faid colony without fuch licence. That in cafe the patrons of the refpedive bene- fices fhall not prefent their priefls Within fix calendar months after a vacancy, the fame fliall lapfe to the nomination of the chief juflice of the faid province ; and in N 4 default I 1 't^4 ] ^aulc of hta preTentation in fist^ mondif^ ^he fame fliall lapfe to the governor, as feprefcntative of your Majefty. rMsitjii^ ihiu'J ^ ^ '^'^^ t£ii* "VVhereas marriage and children are the ftrongeft pledges of fidelity which can be givew by any man for maintaining the civil government under the protection of which he lives; and whereas marriage is held by the church of Rome to be a facrament, and to confer grace effedlual, and ex opere operato, and that the fame is to be fo held as an infallible article of faith, according to the opinion of the church, and the de- cree of the council of Trent, in the words of cardinal Navar (1. iv. Concil i. nu. 3.) and facraments are, according to St. Au- guftine *, vifible figns of an invifible grace ; and to be equal to the efFedt of a divine myftery ; and it is agreed by the Canonifts, that marriage is as much a fa- crament as the taking holy orders, only .*/•! [ 18; J It would alfo be proper to introduce the prohibitory law of England, refpe|. and canons is veiled in your Majefty, (as . in the cafe of the vacant benefices hercrfi tofore in the patronage of the bifhop is propofed), and that the places of the faid dean and canons fhall not be filled up when t 190 1 when they become vacant, the chapter will be diflblved of courfe. But it deferves to be confidered in policy, whether as this chap-i ter is much more harmlefs than a bifhopj or any of the other religious orders, it might not be ufeful, by taking away from them all ecclefiaftical jurifdidion, if they have any, excepting by fixed ftatutes over their own body, to keep up the deanery and canonries ; in order that thefe prefer- ments maybe douceurs* in the hands of government to engage the hopes, and t6 reward the fidelity of fuch of the feculaf clergy, as fhall be diftinguifhed for their fidelity to your Majefty* As there are chapters which are regu* lars, as well as feculars, and it does not appear of which the chapter of Quebec is compofed (but I imagine it moft likely to have been formed of regulars, for the en- couragement of miflionaries who always are regulars) it may be right hereafter to confine r 191 T confine the nomination of the dean and canons to fecular and parochial priefts only, and that the governor fhall nominate to the fame in right of your Majefty. According to Charlevoix, b. viii. p. 34a, the chapter of Quebec is compofedof a grand chanter, a grand archdeacon, a theologal, and twelve canons. The King of France named to the two firft dignities, the bifhop named to the reft; whether they had any peculiar and bcal jurifdiaion feparate from the bilhop's does not appear. I underftand that their revenues are very fmall: but their dignities are defirable, in point of honour, among the clergy. But if the eftates, effeas, and revenues, of the faid community, fhall be vefted in your Ma- jefty, and for the fame i urpofes as in the eafe of the other religious communities, the prefent dean and canon being paid their refpeftive fhares during their lives, and no new members admitted, their diffolution will [ '92 j Wlil follow, and then the building, iifcd partly as a cathedral in Quebec, and partly as a pariHi church, which appears hereto^ fore to have been partly under the direc-* tion of the bifhop and dean and chapter^ and partly under the direction of the churchwardens and parifhionerfe, may ht repaired by a tax to be laid upon thd parifhioners, and be hereafter confidcred entirely as a parifh church for the uffe bf the parifhioners, under the diredioh of the churchwardens only. ' . * * ■ '-■ The fpirit and letter, of the eighteenth articje of the plan of eftablifliment, pro- pofed by the board of trade, feems proper to be adopted, touching correfpondencej &c. It may therefore be enad:ed, accord-^ ing io the terms of the faid article ; and farther, that if the fuperintendant of eccle- liaftical affairs, or any other perfon, ihall procure, ufe, or make public, any difpen- fations, buUsi excommunications, fufpen- fionsy lions ab officio vel beneficio, or any oth^r inftruracnts or ai^s of authority, from any prince or potentate, ecclefiaftical or fecular, other than from your Majefty, fuch pcrfon fo offending (hall be banifhed from the faid province, and be made in- capable of all civil rights and benefits whatfoever, in any part of your Majefly*8 dominions, and in cafe of returning into the faid province fliall fuffer death : fuch offence 'to be profecuted at the fuit of any perfon informing, at the expence of the crown by your Majefty*8 attorney-ge- neral in the court of King's Bench of the faid province. This,reftriiaion propofed with regard to the bulls of the court of Rome, is exactly confonant to the French arret of 28th September 173 j, which forbids all arqh- bifliops, and bifhops, and all others, to receive, make, read, publifh, or execute, any bulls, briefs, or inftruments of tl>e O court .f> V\ [ 194 ] court of Rome, without letters patent of the king regiftered in parliament *. I recommend, in cafe of delinquency, the banifhing the fuperintendant or other ecclefiaftie from the province, rather than imprifonment, as propofed in the forty- fifth article of the printed heads of a bill for tolerating the Roman religion. Be- caufe I am of opinion that a pc.pular bifhop or ecclefiallic imprifoned, may occafion a revolt; or, that after his releafe and dif- graee he will prove a perfon exceedingly dangerous, from his influence and refent- ment, to remain in the province. Agreeably to the fpirit of the twentieth article of the plan of eftablifhment propof- ed by the board of trade, no pomp or pro-* ceffions in the roads cr Jlreets fiall be iifedhy * Vide Arret, 26th Feb. 1768, fuppreiTing a brief of pope Clement XIII. 13th Jan. 1768. Viiie Arret, 28th September 1731. any [ '95 ] any ecckfiajlicst nor fhall any eccleriaftic^l perfon ufe any other habit than fuch as is tifed by the abbes in France, except in the time of divine fervice. And that all per- fons offending herein {hall be informed a* gainfl: as above, and be fubjed to fine oi* banifliment, at the difcretion of his Ma^ jefty*s chief juftice of the faid proYince* In the fixteenth article o/ the plan for eftablilhment by the board of trade, it is propofed, that your Majejly^ and your royal family y Jhall be prayed for, according to the forms of the Romijh church. This article is not fufficient to anfwer the purpofe iu- tended; namely to infpire the Canadian fubjeds with a fenfe of loyalty : for the form of the Romifh church is manifeftly not underftood in the faid article. For the fad is, that the mode of the church of Rome in its ritual, and in every mafs book ufed in the dominions of your Majefty, is to pray firftfor the pope, and next for the King, without naming him; and which O 1 mode [ 196 ] mode both infinuates inferiority of dignity and power in your Majefty ; alfo that an*- other pretended King may be intentionally and confcientioufly prayed for; fo that fuch a fort of prayer has a manifeft evil tendency, aiid it would be much lefs in- jurious to your Majefty, that no prayer at all fhould be ufed for the King, rather than in terms fo derogatory to your Majefty's honour : wherefore I am of opinion that it is of great political confequence that this mode of praying fhould not be tolerated, but that an efpecial prayer be formed and ufed in the French language ; and (not to break in upon the order of the mafs) that this prayer fhall be immediately ufed as an introdud:ion, before any other fervice fhall be begun; in which prayer no prelate or other potentate fhall be prayed for, but your Majefty by name, the Queen, the Prince of Wales, and the reft of the royal family, with a fuitable preamble, in order, to imprefs the minds of the people, and to inculcate an idea of fubjedtion to your Ma- jefty [ '97 J jefty alike in all orders of men, both tlergy and laity. It is right to fubjoin here the form of the prefent prayer univerfally ufed at mafs in England, that the impropriety of it in point of decorum towards every crowned head in the world, as well as the equivo- cality of it, may appear perfedly clear. The prayer at mafs is : Lord have mercy upon us, and defend thy fervants^y N, our chief hifiopy our King^ ^leen, as here prefent^ and all Chrijlian people from all adverjty, always^ and in all places-, grant peace and profperity in our time^ and preferve thy church from all wickedncfs, through our Lord Jefus Chrijl, thy Son, who lives and reigns one God^ with the Holy Ghofl^ and thecy evermore^ Amen, Inafmuch as the ufe of the Latin lan- guage, fmce it has ceafed to be a living univerfal language, is not now effential to the exercife of the worfhip of the Romilh Q 3 religion. [ 198 ] religion, but that the «^bfervance bf the rites and ceremonies thereof can be as ef- fedtually preferved in the language of the people among ^rhom the fame are ufed ; it may be enabled, that any prieft who Ihall chufc, at the requeft of the major part of his parifhioners* to fay mafs in the French tongu6, fliall not be reprehenfible by his Ccclefiaftical fupcriors in any way for fo doing ; nor Ihall any perfons be re- prehended for reading the holy Scriptures in the French or Englifh languages. That the inhabitants, and clergy in par- ticular, may have always before their eyes fomething to remind them of their depen- dence upon your Majefly's protedion, and may reverence your authority, it will be proper that your Majefty's arms, as it was done by Queen Elizabeth at the time of the Reformation, fhould be placed in the mod confpicuous manner in the churches, over the pulpit, or entrance leading from the nave of the church into the chancel or ehoir ; and that the governor Ihall take care [ »99 ] care to have the fame executed in a proper manner. Alfo, that your Majefty's arms, carved in ftone, be placed over the gates of the city of Quebec, Montreal, and all other fortrefles, magazines, in the mar- ket-place, colleges, hofpitals, town-houfes, and all other public buildings whatfoever. As the pope's abfolution of oaths de- ferves a peculiar attention from your Ma- jefty's government, being a moft dangerous power ; and as it is a peculiar tendency of the Romifli religion to make men de- pend more upon ceremonies than good adions, and on the pardon of the church, depofited in the hands and intention of the priefts, fo it is a fad well aflured, even by one of the Canadian clergy, that the great vice of the Canadians is a contempt of falfe fwearing ; I muft obferve, that the difpenf- ing power of oaths taken in Canada by any ecclefiaftical perfon ought to be guarded againft by efpecial words, as the word this realm is fo equivocal. The com- piiffion of the governor has much too O 4 great r 200 ] great a latitude, by leaving it to his difcre^ tiotiy as he Jhall think Jit , to tender the oaths of the I George /. to every fuch per/on as Jhallpafs into, or be abiding in the /aid pro- vince. This difcretion ought to be more fpecial, for the fafety of the province, and for preventing more miffions. I make no more remarks upon the wifdom of a com- miifion vphich difpenfes with the oaths of allegiance to your Majefty. As the diflblution of the prefent monaf- tic communities may not prevent more being fet up in a future time ; becaufe un- der the notion of fchools and feminaries of learning, or hofpitals for public charity, enthufiaftic or weak perfons may be in- duced to make devifes of their lands or ef- feds in mortmain (a term equally known in the French law as in our own) it may be en- aded, that all fuch devifes (hall be void; as well as all fuch fchools, feminaries, and hofpitals be deemed unlawful, and for- feited to the crown, unlefs' perfons fo devifing fhall in their life times, not being confined [ 201 ] confined by any ficknefs, obtain licence from your Majefty to make fuch devifea; and unlefs fuchfchools, feminaries, or hof- pitals {hall be kept, fct up, built, or main- tained in confequence of your Majefty's licence ; and that fuch licence fhall not be applied for until the intention of apply- ing for the fame, with a defcription by whom, and for what purpofe, and with what rules and endowments, or funds for fupport thereof, ihall have been made public for thefpace of three months in the Quebec Gazette, in order that every per- fon interefted may Ihew caufe to the go- vernor in the faid province, why the fame ought not to be granted : and that no li- cence fhall be granted by your Majefty, un- Jefsthe governor of the faid province fliall certify that the faid fchool, feminary, or hofpital is fo regulated and endowed, that no detriment can arife from thence to your Majefty and the province ; alfo, it may be proper that the governor of the faid pro- vince may at all times vifit, regulate, and controul [ 202 ] controul every fuch fchool, feminary, and hofpital, as the reprefentative of your Ma- jdfty, upon any complaint made, or upon his own view, in a fummary way, and with- out further refort* In fupport of the reafonablnefs of this regulation, I cannot do better than refer to the feveral laws of France touching the religious orders, and gens de main morte ; particularly to the paper in the Inclofure, printed by order of the council, p. 3 1 . and the abftrad: of theLoix de police, Declara- tion du Roi, 25th Nov. 1743. It there forbids the eftablifhment of any commu- nity, or other religious houfe, without the royal permiffion : forbids any perfon to lend to fuch focieties his name in truft, under a penalty of ten thoufand livres : forbids any perfon to devife by will any effedts of the nature defcribed. And there is another Declaration of the 25 th Nov. 1743, in the printed Abftrad of Edids, p, 12. By this declaration, the religious, and [ 203 1 and gens de main morte, ejlablijhed in the French coloniesy are not to form any frefl| communities, (they are not to encreafe their members) without the King's pcrmiflion, and it forbids all notaries and other officers of the law to pafs, execute, regifter, or receive in favour of thefe communities, or people de main piorte, any contraAs of fale, exchange, donation, ceflion, transfer, or other ad: neceflary for the having and holding fuch effeas and eftates as are there- in recited ; alfo, no contrads for creating rentes foncieres, that is, rents chargeable upon lands irredeemable (which by the Freijch law is corifidered as Und) ; nor rents of conftitutions upon particulars * by which is underftood intereft chargeable by con- trad upon the perfon and his goods which are redeemable. But the moft extenfivc edidt for reftralning monafteries or other focieties in main morte, is the famous edift of 1749. In certain cafes it makes their acquiiitioiis to efcheat to the crown, and to be reunited to the domaine. Whereas f 204 J Whereas it is of the utmoft political im* portance to preferve the eftablifhment of theRomifh religion, under thefe modifica- tions^ which arifc not only out of reafons of general policy, of which the laws of France are a proof, but without which I do not conceive the exercife of the Romifh religion can be tolerated with fafety to your Majefty and the realm, or confidently with the fundamental laws thereof ; the means of fupporting the faid toleration, by fupporting its neceffary reftraints and boun- daries are therefore to be confidered j for this purpofe it is conceived it will be pro- per to look back to the means adopted by the reformers of the church in England. The grants made of the church lands and tithes, inftead of keeping them for the fole and perfonal ufe of the fovereign, which would have been odious, was a mea- fure full of great political wifdom. The paffing of the eftates of the religious com- munities upon their diflblution, and tranf- ferring other ecclefiaftical poffeffions, even the l '°5 ] the biihop's part, into lay hands, and part out of one ecclefiaftical hand into another ccclefiaftical hand, to make good when the eftates of the latter had been granted into lay hands, was a meafure which creat- ed a new chain of dependence. Every ecclenallic who had loft on one fide, but ^^ho had gained an equivalent on the other, was afraid of the return of that fyf. tern, which would occafion a reftitution in integrum to the firft lofers. The fecular clergy, or thofe of the new eftablilhment. juftly feared that they fliould never be able to recover from the nobility and laity the eftates which had been taken from them VIZ. from the clergy who remained eftal blifted, and who now had their lofs fup- hed m a certain degree out of the eftates of the regu,„,, ^^^ ^^^^ ^^^.^^^^ ^.^^^^^^^ Nobility, laity, bifl>ops, reftors, vicars, every beneficed prieft accordingly held faft their new grants and endowments; and even when the Romift, religious ceremonie, exifted ftilJ as the national ritual, yet the refo.rmatioQ I 206 ] refoniiu Ion x^as begun f he power of the fee of Rome was cffeduaily removed ; and a guaranty ot the gradual and governing flrw fy/lem of religion '^'as fo firmly efta- blillifd, that nothing but a total revolution again of all the rights of property, and of all the forces which fupportcd thofe rights by manutention and the fword, could over- turn the new fyftem of the power of the crown, now declared to be fupreme in all caufes ecclefiaftical as well as civil. No bonds could be imagined more efFeiSlually to raife the edifice of the new church go- vernment upon a rock than thefe meafures* The great fprings and ties of human ac- tions are intereft and property. The con- fequence of them is dependence. It may be thought right therefore in •hefe views of policy, in cafe of the dean- ery and chapter of Quebec being hereafter diflblved, and all the other religious com- munities, as it is propofedin theplmi of tne board oftrade^ for the crown to avail itfclf thereof. [ 207 ] thereof) agreeably to the fpirit of thecou- «lua above defcribcd at the i.oformation, in the mode hereafter to be propoi; d, or in fome other ; the following fads being fira confidcred. The lormcr and prcfent ftate of the clergy in Canada appears to be as follows, from an account of Mr. Veyfficre. The fecular clergy of the province of Canada m the time of the French government, and m their firft eftabliftment there, had all of them glebe lands, and the tithes of their refpeaive pariflies, both great and fmall • alfo mortuaries, money for mafles, and all other ecclefiaftical profits ariling and ac- cuftomed for the performance of religious ntes. Thefe advantages made the livine, confiderable. The whole number of pa- nlhes are one hundred and twenty-eight- one of which is worth about five hundred pounds fterling; another about three hun- dred and fifty pounds ; two or three more from about two hundred pounds to two hundred I a©8 ] Ifdit^d and .fifty pounds; and many to atfouftonC: hundred and twenty ^fivepaundfi* feif *» dozen of thefe livings the feigneura «c*$6r4s of manors have the advowfon; S\€"rcft (too many) are in the gift of the lirfli6j^: and the patronage of the former, a^ apiiears by the French commiflion^, h^vc heen acquired by the feigneurs grant- ing glebe lands, or building the churches^ Tfeb mode of fequellration has already been "ammadverted upon. La Valiere, a former bifhop of Quebec, carried his paf- fiOTx for power fo far, that he even refifted |he repeated orders of the court o:^ France to the contrary, which confidered this cofi- dudt of putting livings in feijueftratiblti as 'a breach of the ecclefiaftical corii- llitution of that country, arid a grievance jiiftfy complained of by the cTergy of trie^ province. Therefore it is cohceivcd, that if the fuperintehdant is to ht 'cbhfinid only to the bufinefs of ordinatiort,' It >^iH Ve a heceflary and moft effedual method of preventing this tyranny over his clefgyi, to 3^^t*J"^'^ ma»y to eigneura vowfon ; ft of the former, [tiiffion^, s grant- hurches^ already aliere, a his paf- i refifted !" France his con- eftratiblrt al con- rievance ergy of hceivcd, confined , it\^m method \ clergy* to t 209 ] b declare the patronage of all ecclefiaftlcal benefices, heretofore in the gift of the bifhop, and dean and chapter, and of all other ecclefiaftical perfons or comm^unitics, to be vefted in your Majefly onfyy{siving the right of the feigneurs and lay patrons. That the benefices heretofore in the gift of the biihop, are fo vefted already (^annot be doubted in law, becaufe there being no bifmp by law the patronage of the faid benefices is devolved to your Majeft)'S crown of courfe. It feenis to be pretty clear, that anf re- ligious communities, who, as principals at the time of the conqueft, were not inhabit- ant^, refident in perfon, do not fall under the privilege of the capitulation, nor come within what is termed by the civilians, the cafus foederis, fo as to retain the property of their eftates under it j becaufe they were not then the local objeds to whom, as a perfonal confideration for ceafing their re- llftance, and on account of their particular P courage ( 210 J Courage or diftreffes, the conqueroJf^ granted^' terms of efpecial favour ; neither could they rf//W according to the treaty; and if they could not retire, they could not takeaway their perfons and eilates; therefore, if it is true in fadl, that any eftates arc nois) held un- der the grants of foreign religious comrau- nities^ cither in under-tenancy, or in truft for them, or by deputation, fuch as the Jefuits and the ecclefiaftics of the feminary of St. Sulpice at Paris, that fadt is very important. The community of the latter,, are the temporal lords of the moft fertile part of Canada, and a city dedicated to the Virgin Mary; they have an influence there, equal to the power of the Italian clergy in the ilate t)f the church, or Campagna^ di Roma.. "the parijhes ifi the ijle of Montreal and' its dependencies, fays Charlevoix, b. viii.. p 34c. arejlill upon the ancient footing of moveable prieftsy and under the directions of the members of St. Sulpice, They poflefs a fine and improving eftate of eight thoufand pounds [ 2". ] founds fterJing a year at Montreal, aixj which will in a few years be worth ten thciufand pounds. If all the fa^s are clearly ^ftablifhed, as ftated, it id a great queftion of law, whether thefe eftates afe not now fallen to your Majefty, of whom the under-tenants and poffeflbrs mufl: he intended to hold them, as truftees for fueh tifes as yoiar Majefty fhall declare. VT, It is in proof by feveral deeds of eftates (it is immaterial whether before or after the -conqueft) that the Re%ious living in the feminary of Montreal are merely ne> gotiorum geftores, they are fo defcribed in feveral inftruments of conveyance, which Mr. Mazcres has perufed in the courfe of bufinefs. Thefe conveyors are faid to be Fon^ez de la procuration de Mefrs. les ec- clefiafliques du feminaire de St. Sulpice a Pans, It appears, according to Mr. Lothbiniere*s own wo^s*; that before the conquejU the feminary of St. Suhke at * Printed paper, artkle Ixvi. V 2 Paris t 212 ] Paris, was a voluntary partnerjhtp amon^ a number of clergy at Paris, who had en-* gaged together in buying and felling; that the joint houfe at Montreal had a Jhare in the joint houfe at Paris, in a fort of mer- cantile way, and an open account* That after the conqueji they difjohed the partner^ Jhipy becaufe the hot fe at Paris (fays Mr. Lothbiniere) could not have any right aftec the conqueft in the effects and eftates in Canada; they at Paris transferred (what therefore they could not transfer, having at that period, as he admits, no property in the eftate, and only a ftiare) the whole in Montreal to the Religious there, who pro- bably "o^ere not (vraifemblablement, fayar Mr. Lothbiniere,) attornks of thofe at Paris y and this was done by the lattery upon paying a compenfation, being the dif- ference of the account upon a balance. This after all is oui dire, as he fays he has heard and believes : and it Hands againft the eri- dence of Mr. Mazeres, if it were contra- didory; but it appears manifeftly, tliat the r 213 1 the Religious at Montreal have only a coloured and oftenfible title. There is alfo the evidence of a gentleman of un- tloubted veracity and knowledge, who having had tranfadions with Father Ma- gulphi, the perfon ading in the colony for the community of St>.Su]pice at Paris, •with a view to feme purchafe, the real proprietors were forced to come forward, and the uncertainty of their title broke off the negotiation. The evidence of Charle- voix alfo may be added. In idsy, fays Charlevoix, t/ie Abbe ^elus rePurned •with the deputies of the finnnary of St, Sutpici tit Farts, to take pojfejfion of the ifland of Montreal, and to found a feminary then. By the French law it is clear, that no perfons aliens not being naturalized cart hold lands; fo that by the right of con-^ qiiejl, agreeably to Mr. Lothbiniere's own idea, y^r want of oioners domiciled at the time of the cotiguejl, thefe eflates may be uriderftood in point of law to be fallen to the crown in iovereignty. As [ «'4 ] •^5>''Ai it is of the- higheft cemfeqiieftGe to fbur Majefly's government, to underftai^d pifffedly the nature of all the eeckfiafticai foundations in Canada, I cannot difmifs jth^ fitbjed: of the Seminarians of Sulpicc *^hout obferving, that in the feveral dio- cefes of France there are feminaries for the Education of poor fcholars, to fiipply the parochial clergy *: that thefe feminaries are under the guidance of the refpedive Dio- cefan, who commits the adminiftration of thetn to fecular or regular communities j that where there are monafteries which appear not to anfwer the purpofes of their foundation, the bifliops in France have a power, by a formal proceeding, to fupprefs them, and to endow the feminaries with ^heir revenues and eftates. The cqinmu- pities, or pongregations, as the canon law * A French author of authority fays, that cardinal Pole, in the fixtcenth century, archbifhop fif Catvtcrbqry, diredted feminaries of this kind to be fre£l and all its dependencies in Canada. It mpft be oblerved farther, that by the ccclefiaftical lav/ of France, no congrega- tions can alienate or transfer their eftates and cfFeds; nor can fuch focieties, from the nature of them, be divifible, fo as that one p^rt of the f^n^e congregation can tranf- fer to another. It is eafy then to judge whether fuch transfer has been really made, as Mr. Lothbiniere reprefents, and where the property of the eftates of the Sulpician^ in^Canada is centered at t^is inftant. /^Jftoiq i),n • • " ' ''fy, In regard to the title of the eftates of the Jefuits, there is annexed to this report Si iketch of a former one in deliberation, drawn up in a very full manner, by par- ticular diredion in the time of Mr. Gren- ville's adminiftration, May J2th, 1765; but upon a change of adminiftration foon after, and of the other law officers of your Majefty, to whom it was referred jointly b'Jlidiu' with I 217*] with the advocate-geoeral, no report waji made in form. ■fvoilb Upon the whole, it may be proper for an ad of parliament to declare that rail grants, transfers, hypothecations, convey^ ances of any kind, made by fucb reiix gious communities as were not domiciled in Canada at the time of the refpedive ca- pitulations, to any perfon or perfons in the interval between the capitulation and the treaty, of Paris, or fince that time, are ipfo fado null and void. Farther it may be enaded, that the pay- ment of all tenths, dues, rents, and profits, of whatlbever kind, heretofore paid ibrlthe account or benefit of any religious order, of whatfoever denomination, or general, ecclefiaftical perfon, prelate, or pontif or potentate, np^ domiciled in the J aid colony at the time cf the capitulation^ fliall henceforth ceafe and determine ; and that all perfons refident in the faid province, whether ec- Clefiaftical or lay, Ihall be expreffedly pro- hibited I 2l8 J hibited from paying or remitting the. fame for fuch purpofes, under the penalty of treble value, and full coils, upon convic- tion, to any pcrfon who fhall inform: and that the attorney-general fball profe- cute, at the cxpence of the crown upon fuch information, or ex officio, in the »court of King's Bench in the faid province. But as it may be difficult to prove fuch •payment or remitting, it may be enaded, that any perfons who fhall have received ^ moneys for fuch purpofe, may lawfully keep and apply ,the fame at their difcre- tion, to any charitable, or public purpo?cp„ for the benefit of the province ; and that all trufts, contrary to the letter or fpirit of ^thefe ads, fhall be null and void. For the encouragement of induftry, it -tnay be enaded, that no days fliall be (kept holy, nor fhall the people be pro- iiibited by the ecclefiaaical fuperin- tendant or priefts, from working for th^ fupport of themfelvcs and families, ex- cept Sundays, Chriflmas-day, and Good- Friday ; [ 219 J Fid^ay ; and that all other feafls, holy-days, or fails ihall be aboliihed, except it (hall be otherwife ordered by the governor of the province, in the nature of his Majefty's proclamation ; and that if the faid fiiper- intendant, or any prieft, fhall prohibit as above, or ihall enjoin feafls, holy-days, or falls, other than as above, he or they ihall fufFer imprifonnjent for ten days, and pay five pounds and full cofts of fuit, to any perfon who ihall fue for the fame in the court of King's Bench. It may be proper that the 'twentieth ar- ticle of the board of trade fhould be con- firmed ; in as much as it correfponds with the decency preferibed by the anfvver to the fixth Article of the capitulation of Quebec : gnd all procefhons of pomp and parade ^ould be prohibited, as againjl the peace of the realm* It would be happy for the fick if tbe hoft were not to be carried to their houfes and beds, to diflurb them by a croud of followers, as is ufual : and this deferves re- gulation t 2iO ] fguUtion as an article of police, as well as of TcHgion and hitmanity to the fick and expiring ; bcfides, that this praaice, hy a croud bringing back the hoil, is an effec- tual means of fprcading ihe fmall-pox, and other peftilential diforders in the co- lony. The confequences of a hifhop*8 marching through the ftreets in proceiTion, want no obfervation. For compofmg the minds and gratifying the eft^blifhed Roman catholic clergy o^ the province, it feems proper that the tithes, in the manner as ufually taken, fhould be confirmed to the fecular clergy, in the manner hereafter to be fet forth ; and that all tithes paid (if any tithes are paid) to the religious houfes, which houfes fliall be fupprefled, fhall be granted to the refpedivc landholders of whom fuch tithes are taken ; which meafure would greatly engage them to fupport the new government and ellablifhment. If it ■ iliould be thought proper to refervethe fe- minary of Montreal out of the general dif- .y pofition [ -21 ] pofitlon of the revenues of the religious houfes ; it might be done with the follow- ing view, that the revenues of the faid Ibminary being verted in your Majefty, the tithes and ecclefiartical dues and eflates' (not otherwife being applied by your Ma- jcfty's pleafure) belonging heretofore to the faid feminary, fhall be app'ied to fupport fuch perfons in the fhid feminary as your Majefty fhall from time to time think pro- per to give licence to be admitted therem, and for the maintenance of profeffors in the feveraJ fciences, to be appointed by your Majefty; refcrving always to your Majefty and your heirs, your royal preroga'^' tive to vifit the faid feminary of Montreal, by your commiflioner, or commimoners, under your fignet and fign manual, and to give or repeal, from time to time, fuch R^' tutesand regulations as your Majeftv ii? your great wifdom may think necelTarv for the direction of the faid feminary : and to remove and difpofe of the head and members of the faid feminary at vour Ma> jefty*s pleafure. ' -''^■'f It [ 222 ^ 7rrtt may be proper to prohibit tbat atif fchoojs fhall be fet up, or that any perfpny either lay or ecclefiaftical of the per-- fuafion of the Romilh church, fhali pre* fume to teach publicly, or read lectures ki any fchool, without licence from the governor; and revocable atpleafure. It is ftated . that the patronage of only twelve parifh churches and benefices in the province, out of an hundred and twenty- eight, or thereabouts, is in the poITeffiort of feigneurs, and that the reft were in the collation of the bifhop of Quebec. This fad is not quite clear, for in 4743 Charles voix fays, that the livings in all the ifland of Montreal and its dependencies, were in the gift of the feminaries of St. Sulpice. It might be proper to declare that the patron- age of all the ecclefiaftical benefices here- tofore in the gift of any ecclefiaftical per- fons, or prelate, are by right of fove- reignty vefted in your Majefty; and that your Majefty hath a right to grant the faid patronage and power of prefenting to your Majefty's r 223 ] Majefly's governor, chief juftlce* or iny other fubjea, lay or ecclefiaftlcal, as >-ou'r Majefty in your royal wifdom Ihall fefe meet from time to time. roftrm Before this fabjea of the ecclefia'ftical eftablifhmentof theprovinceis difmiffed, it may be proper to take fome little notice'of the regard which the religion of the domi- nant power has a right in common deco- fum, and in the eyes of all Europe to claioi in the hew fyftem. The Englifh Proteftant fettlers, while the largeft feigniories are got into their hands, and more are getting daily, think it hard that they fhould pay tithes to Popifh clergy : fome of the Popifh Seig- neurs areas little delighted with it it ia however juft, that the parochial clergy fhould have their dues. The former, the Britilh. Proteftant fettlers, arc unrea- fonablc to complain of paying tithes; becaufe it is indifferent in point of juftice to whom they pay, as they make purchafcs of 'I 224 J 61 eftates with that civil burthen upon' them, which may remain or not, as the grant of tithes is referved to your Majefty's pleafure by the capitulation. If tithes therefore were to be taken away from the clergy,, yet they would belong either in na- tural equity to the feigneurs, who gave the glebe, endowed and built the churches, to- gether with the parifhioners, or to the crown, as to the feigneur paramount, the heirs of thofe feigneurs and pariflvioners, who perfonally contributed, not being known. Upon the whole, when I fpeak of tithes as due to the Popifh clergy from Proteftant landholders, I mean only prae- dial tithes, as arifmg from land, not per- fonal tithes, from tvhich I think th^ ought to be excepted. The gens de maine morte, cr religious orders cannot complain that any injuftice is done to them perfonally, by fufFering the eftates of the faid ecclefiaftics, as corporate bodies, to die away with them: as they ^j^ ^Qow can have no fucceffors ofthchr bodies^ fo your f 225 ,] i^our M^jefty is their right , and l^wfql heir, who by your royal prote teran [ 234 ] tcran, 1215, of Innocent the III. which denounces (in certain cafes of omilljon of confeliion, and of other ccclciiaftical ce^* remonies) interdidlion, excommunication, and deprivation of fepulturc ipjb fatlo^ without any form of trial. The remarks made by Denyfart upon the reafons of the difpofitions of this canon not being fol- lowed in France are perfcdly juft ; viz. that no fuch general laws can be executed^ till they are announced by the lawful judge ; becaufct to permit execution with-^ dut fentence, would be an injlrument of the moji powerful and unjiijl oppreffion^ Col!e. ^.> Mit^^-^i^^i^ •f Fifth. Parifh minifter at Montreal, hel^ at prefcnt with the chaplainfliip of the garrifon. f H7 1 The chaplains of the four regiments ^ot not attend them % the eonfequence of which ifi, that the common mea become almoft. immediately converts to the Hoa miih religion. ,0 ^^y>i^ .^..^^.,;, ,.... ^^^^^ .; As non-refidenceof the clergy in all the Britifh colonies has become a matter of very juft and ferious complaint, and feems at prefent to be without a remedy, it would be neceflary to enforce refidence within the diftria: : and that no ecclefiaftic, being beneficed, either Proteftant or Roman ca- tholic, fhallgo out of the province of Que • bee, or of any of your Mdjejiy's colonies in America, without licence of the gover- nor J and giving fecurity to return withoue exceeding twelr- calendar months, and on pain of forfeiture of his benefice. It may be proper that the falary of the minifter of Quebec, as the capital of the province, be made 500 1. a year. That at Montreal 300 1. That at the Three-Rivers 200 K The chaplains of the garrifon at Quebec and Montreal 150 1, each. And that no perfon, 1 238 J Jperfon,jafter Mr. De liille, iKall hdldnife'rii than , one ecdefiafticiil preftrment^ vmdett atiy dcnominatiotii. And that the cliap^* laina of the feveral regimehts fhall attend- them, in failure whereof, that others fliall be appointed in their room by the gover-* nor; ■.■■ . ^ . . .. ■;.,... .fjt^ ..^.Laftly, that if any Roman catholic, lay Or ecclefiaftical perfon, fhall offer to take- the oaths of abjuration in any chapel or Proteftant church of the garrifon or pro- vince, no perfon fhall refufe or hinder him therein, nor refufe to admit or put any perfon into poffeffion of any church or benefice, to which your Majefly, or your reprefentative, fhall by right of patronage prefent, under pain of incurring a prae- munire. I agree to the propofition, that no flats has been overturned bv toleration ; becaufe in all flates which are undivided, . the greater number tolerates the lefs. Hither- to, fince the conqueft, the Roman catho- lic [ ^39 I lie religion in Canada, divided from,Gibat, Britain at fuch a diftance^ only toleraiteS the Proteftant; becaufe the pojOTeflbrs of the former fyftem are prodigioufly fupe- rior in number ; which nothing can leffen but the removing their ignorance, by the introdudion of learning and commerce, and removing ecclefiaftical foreign authority; by endeavouring to extirpate, not men, but opinions, by a modified toleration, and to lay a foundation for the church of Canada ^ :"orm itfelf by degrees : which is all thai can be done, or ought to be at- tempted. I cannot fee any reafon why the fubjed of thefe modifications of the exercife of the Romifh religion, which involve great conftitutional queftions of the law of the realm, and of your Majefty's fupremacy,' Ihould be referred * to any legiflative bo- dy of the province, part of whom are pro- pofed to be Roman catholics, and not to « Solicitor- general's Report. a Brit- k britifli parliameat. I cannot conceived Init that thi» mode of proceeding would be lialble to the greateft obftrudiona, uncertain- ty, anddiflenfions. The fettling the laws of property and the courts of juftice is advifcd •to be referred to your Majefty 's great coun^ 5cil in parliament ; I cannot therefore un- derftand the diftinftion, nor the propriety of the meafures of carrying elfewhere the queftioiis in refpedt to religious perfons and their property, which is mixed with the laity and lay concerns. ' Whenever the feveral ads of parliament ihall pafs, a proclamation Ihould ifliie, jpenEied with the greateft care, agreeably to fhe tenor of, thofe ads, that the alterat tjon^ and additions of the laws of this, gq» lony may be made known to all your Ma- jelly's fubjeds. , h , "te4 aAi # opinion that the Jefuits ihould he fent immediately out of the provinccibe- caufe I do moft truly concur in * opiniort Sol i^itw- general's report. that [ 241 ] that it is impoffible, the fads charged being out of the queftion, that they fhould ever be fyftematkally friends to Great Britain, and your Majeily*s fucceffion ; nor are they any where agreeable to the fecular Romiih clergy, with whofe rights in the greatly interefting and public points of confeffion and education they manifeftly interfere^. Laftiy, The feveral afts of parliament relating to the faid province, which fhall be made, and all ftanding or future Orders of the governor and council, and all other new regulations whatfoever, which are to have the force of laws, ouirht to be printed in the French and Englilh lan- guage, and be put Into a book in every parifti church in the province, being firft read in full congregation, and once in every year, by the minifter thereof; and kept Ly him and the churchwardens, as a record of ihe parilh, for the ufe of the parifluoi>ers; in order for the better avoid- R m- I 242 ] xftf^^idifput^s, Jifid that no perfon ittky preir tdnd igaorance of the law, and that the penalties thereof may not be kept lecret, fo as to intrap innocent and well meaning fahjefts, and bring their loyalty into quef- tidn, or otherwife to leave them without that certainty and confidence in the laws touching their pcrfons and properties, ivhich confidence is the only tie of cml go." vernt/ient. f I have now iaithfully laid before your Majefty, without the Icaft bias to any man, or fyftem of men, every circumftance which has occurred to my mind, upon the whole fubjedl, in the extent as referred by your Majefty, by bringing all fads, propofitions, and reafonings together into one general view before your Majefty : not i^ithput pointing out fuch a probable plan 9i^ may be purfued in the whole, or by prts, from time to time; which plan may ').>')!i.. be Cfj fUo i 2^3 ] be confiftem with the conftitutional f brnis and fpirit of the reft of your Majefty's go- vernment, and the laws, ufages, and policy thereof. In what way the executive powers fliali be exerted by your Majefty upon this occafion, feems to be the proper pro- vince of your Majefty's judges of the com- mon law of the land to advife. The oper- ation of the treaty of Paris and capitula- tions by the principles of the civil law, and of nations, the nature of the ecclefiaf- tical rules, and foundations, the canon and 4;ommon laws of France, and the prero- gative of that crown exercifed in regard to all eccleliaftical perfons and their property, are parts of the general fubjcdt which it became me in my place in a particular manner to enlarge upon. The leading le.- glflative principles, the aftual ftate of the colony, the courts of judicature, the local law of the province, and t;he revenue, and tlie fcparate articles of the projects of the board of trade, have been minutely entered 'Into. I fenfibly fed, in a long courfe of R 2 office. [ 241 ] pilice, the weight of fuch ample rcfcrencoa concerning queftlons, in which law and po,. hey are inleparably blended ; too extend five for the leifure and capacity of any one man, and too hazardous for the prudence of molt men. My particular duty to your Majelly has now, as always, overcome every private confideration ; and I Lad rather err in ftridlly difcharging my truft, than not to have attempted to think right, or hav- ing thought wrong, not to acknowlegemy errors and correct them. Too many dif- cuflions cannot he entered into upon fuch a fubjea, with courage and fincerity, for the juftification pf your Majefty^s fervants, the fafety of the colony, and the intercfts of the realm. If in the private line qf life it is fo hard to fay what is the fur- ptcme good of any (ingle being, how much more difficult is it to afcertain fw/jic'/i your Majeftys law fervants are now called upon to do, informing a code of laws) the higheft degree of political good tP t Hi ] to mankind, In the aggregate of any civ(l. aflTocIatlon? To aid your Majefty's ar^' dent wifhes for the utmbft happinefs of your fubjeas, muft be efteemed the moft honourable of labours; and although little 18 done by the wifdom of men, and by re- fined, refledloils, in fixing the fate of king^ doms, ever liable to thofe concuffions in hiftory which give their forms and force to various governments, yet I am convinc- ed, from the feelings of my own mind, that the political and legal conftitution yhich your Majefty in your great wif. dom fliall give to the colony of Canada, will be the probable foundation of a great empire in future times, when this ifland of Britain, by inteftine difTenfions, or the invafion of foreign enemies, fhall ceafe to have its weight in the fcale of Europe. Moft humbly fubmitting the whole mat- ter, in which your Majefty's perfonal 3 . glory gw^fs ib greatly concerned, to yotir J^'la-* jefty's iupreme wifdom, aided by opinions of much higher authority thail thole which are here offered, I have the honour to remain, with all reverence and dirty, . . • V your Majefty's moft faithful and devo^ »„ fubje^t and fervanty College of Advocat'ear, Jfo^rtConunoiu« 1773' I,. i^jQ UH- JAMES MARRIOTT. \V[i ' 1 ^^•vf'-.> APPENDIX. .'V iijlli^ NUMBER I. Letter to the Attorney and Solicitor''*' general*, upon a fecond reference "^ of the cafe of the Jefuits in Canada. To the Attorney and Solicitor-General. Doftorj Commonsj Maj lath, 1765. GENTLEMEN, IHave the honour to tranfmit to you two references made to us 1 y his Ma- jefty*s command: and in order to fave time, engaged as you are in fo great a Variety of bufmefs, I take the liberty of fending you fome few obfervations on the fecond reference, it being expected that * Mr* Norfon, and Mr. De Grey. f By the right honourable the earl of Halifax, his Majefty's principal fecretary of ftate j a copy of an arret of the parliament of Paris haying been obtained. R A. our [ 248 ] ottT report fhould be very full on this fub-* jcdt ; and which report will be circulated wherever the focicty exifts. I will make any day or place ;.grceabfe to me, to fetth our report, which will beft fuit yourfelvcs, if you will fix it together, and favour me with notice a few days before^ In order to anfwer fully the purpofe of the reference, I apprehend it is neceflary to« enter into a detail, and to keep the in- ftitutc of the focicty conftantly in view. ' In anfwer to the queftions. fV/iaf cjlate is 'vejled in the communities orfocieties ofjefidts^ which they occupy irt houfes or lands in Canada ? Whether they coutdy without poUoers from the father-general or fuperior, before the expiration of the eighteen months allowed for thefale of efiates under the treaty of Paris, and now can make a good title thereto ? And whether the general or fuperior^ rejiding at Rome, and never having been in Canada, could have given, and now can g [ 249 j ^cue^ powers to mah a legal (kkfoTithfaft rffuchpoffffions? ,,, ,^-, I beg kave to obfervc, that, l>e fides tlie Jefuits of the Icfs Obfervancc, who arc to be found in every part of the world, coi>- ccaled agents of the fcclety, laymeii^jRi well as priefls, perfons ^"^^o have been married as well as thof; who i ave nevet married, and of all condiiVj « aru employ-* mcnts of life, (the whole c. ier amounting to twenty thoufand men in the yerr 1710, and lince increafed In proportion to the en- terprifing genius of that focicty in the courfe of half a century) the known communities of the Jefuits in Canada are the mlffions. The miflions are, properly fpeaking, draughts from the houfes of the profclTcd ; (agreeably to the plan of this order, founded by a military man on military principles) they arc engaged by their fourth vow to go to any part of the world where the Pope, or their general fliall fend them^ Xion peiito viatico. The miflions are {s^ Ci^lUU t 250 J Called in theip inftitute, in diflindion td the houfes of the profefled, and from the noufes of the noviciats and colleges. The miffions, like the profefled, are all under a vow of poverty, and mendicants by infti* tution ; and as the profefTed hold eftates in truft for the noviciats and colleges, and the reft of the fociety, having nothing for themfelves, otherivife than indireSllyy (for they never beg notwithftanding their inftitute) fo the mifliors, who are detach-^ fnents from the profeffed^ hold eftates in the fame manner. If the eftates are dona- tions, then they' are held for fuch ufes as the founders, by grant, gift, or devife, fliall have diredted, 2irA for fuch Jurther ufes as the father-general fiall direSl;^ inafmuch as all donations are conftantly accepted by the Older; and ratified by the general, with this fpecial falvo, commonly known and fuppofi. ' to be acquiefed in by the donors or their reprefentatives, ita tamen ut in omnibus infituti ratio fervetur. And if the eftates are acquired by purchafe out of the furplua tfTiC. [ 25' ] ftirpltis of the funds dejiined ad' tibitumhy the general for the fuppori df the colleges^ of out of profits arlfing from commerce oi*^ perfonal induftry, then the miflions hold thefe eftates for the benefit df the whol^ Ibciety, wherefoever difperfed over the whole world, but united under one fove- fcign head domiciled at Rome, whof^" power over his whole order being unxi-*' liiited, he is the fole proprietor, and, as it were, the heart of the whole body, into which, and from which, all property haa a conftant flux and reflux by a circulation of the fyftem in all its parts. So that the eftates of the fociety muft be confidered in? the pofieflion of one man, the general of the order ; who is always by birth an Ita- lian, an actual fubjea ecclefiaftical and civil bf the Roman pontif; upon whom he acknowledges a kind of feudal dependence^ rather than an implicit obedience, (the father-general having fometimcs refifted, and being in fome refpef jbeing g i i^tnf.b ijibje(?:: nor can the indi- I. iduais i)f \ht corniiiiunities of the Jefuits in Cau'xda, Lake or transfer what the father-general cannot take or transfer ; nor can they, having but one common ftock with a'l other communities of their order, in every part of the globe, hold immove^ if^ble poflellions, to bf gippUed for the joint benefit pf thofe communities which are re»- fident in foreign ftates; and which may become the enemies of his Majefty and fiis gpyernment, ..^ In anfwer to the qucflion, Whether th^ i>erJo72s_^ in pojjejjion hold the fame "' as yrvficcs for the genera!^ or for thenvhoh. Juasty I 2S7 ] J'^f^^y. ^f y^fii^h and in that cafe^ 'iiihether fuch trujl u 'not i)oid in law wfidt forfeitures is incurred thereby^ an to whom? and 1 beg leave to obferve, that whoever the perfons are, who occupy the poff^lTions in queftion, they muft be underwood tb hold the fame as truftees for the head and members of the one indivi/i6/e (ockify sind political body of Jefuits, of ecclefiaftical and temporal union, forming, according t6 their inftitute, one church and monarchical gonyernmenty with territorial jurif^iaioh independent of all civil authorities Utider which the members of the fociety at'e Oc- cafiojiatly difperfcd, and wUhout Jiability of domicile that fuch trnfts are therefore, from the very nature of this inftitution, inadmiffible by the law of nations and of all civil governments ; they are void botk in law and in fa the fociety had fix hundred and twelve col- leges, three hundred and forty houfes of refi- dence, fifty-nine noviciats, two hundred mif- fjons, twenty-four houfes of profeffcd : the whole divided into thirty-feven provii;^cc9^ The extent of thefe thirty-feven provinces^ or territpries of the fociety, may be judged of from the confideration that all France forms but five; which are called the pro-; vinces of France, Champagne, Guienne, * Hiftoire de la Societe, p. 967. j S 4 Thou- [ 264 ] Tbouloufc and Lyons. The mifllons are attached to fome one of thefe provinces^ oft make themfelves feparate miffions. Acn cording to father Jouvency, the number of the Jefuits of the four claffes was in the year 1710, on their own lift, nineteen thoufand, nine hundred and ninety- ei^ht. It is eafy to judge from the cnterprifing fpirit of the fociety, how much that num- ber muft have increafed in fifty-five years fince. The four clafles are as follow; firft, the profefled, called by their conftitu- tion focietas profelTa ; fecond, the cbadju^ tors; third, the fqholars, ftudents, and ap- proved fcholaftics; fourth, all thofe who^ Without being of the three former claffes; have taken a refolution to live and die in the fociety, and are in probation till it fhall be decided into which of the three othe?: claffes they fhall be admitted •. * Inftit. Soc. Jef. torn. i. p. 341. conftit. part. v. c. I. in declar. v. ibid, p. 402. Exam, gen. c. i. (eft. 8, et feq. , , ■^•<'''-"-' The £?' Oeneralis, fcc. i, Jefu, t i69 1 ? ^ >. r- i Jefu, p. 424. Conftit part. 8. cap. i. § 6. Idem ireneralis m miflionibiis dnfihem ha** bet poteftatem, par. f.'^^'^talf^f feregoif XI v. 1591, ibid § 2. It appears that the members of the fociety are tticrely agents of the general, and though furnifhed^f>zu* JSfy with his powers, quam vis aliis inf^^ rioribus prgepolitis, vel vifitatoribus, v^l' •com;mifrariis fuam facultatem communi- -cet, generalis potent approbate vel refcin- derequou illi fecerint : how unlimited is the fubmiffion, in a fyftem fubverfive of all good faith ! Temper ei obedientiam et re^ vercritiam ut f«/ vices Chrijli gerit, pra:^ ftare oportebit : how fhocking the impiety of an order thus conflltuted ! . .,:.-i^;/i '■Gregory XIV. confirmed in his bull the prefent fovereignty of the father- general ; the terms are, univerfam gubcrnandi rfl-». tios-m Ignatius fundator monarchicam et in definitionibus unius fuperloris arbitrio contentam cfle dcrrevit. Prseter cjctera c^Uriiplurima, li'lud fequitur commodi ut [ 2yt ] «t umverfus ordo ad monarchicam gitbei*- nationem compofitus maxime fervetur uni- tU6^ ipfiufque membra per univerfum or- bem difperfa, per omnimodam banc fubor- dinationem fuo capiti colligata promptius ac facilius ad varlas fundiones juxta eorum peculiarem vocationem et fpeclaie votum dirigi ac moveri poffint. And. the buH anathematifes all who fhall oppofe their privileges, whether kings, ftates, or pre- lates, upon any account or pretence what- ever, and that the order fhall be immutable even by the holy fee itfel£;and independent \ and what is more extraordinary, that if any pope fhall decree hereafter to tlie con- trary, the general fliall annul the decrees, and reinftate the fociety of his own fole authority, Toties in priflinum et eum in gup antci. quomodo libet erant flatum re- ftituta, repofita, et plenarie reintegrata, per praepofitura generalem fore et efle, fu* ofque effetSlus fortl'-i et obtlnere^ \. . . . . ' SiJUxl * ■ [ 271 t] UaiTKe Jefuits of Spain and Portugal^ do* fu;^u8 of a reform from this unlimited fla*- very to which they were fubjeaed in 1 59^, petitioned pope Clement in thefe words ft>*i .n^^^^ generalis habeat fuos eonfiliarios tamen nontenetur ftare ipforum confiUo fed eft dorainus dominantium et facit quod vult nullis .legibus adftridus : unde mortificat et viyificat : deprimit et exaltat quern vult, ac fi effet Deus, qui liber eft ab omni perr turjbatione et non poflet errare. The fubordlnation and conftant corref- pondence of aii th- members of the fo- ciety with the father- general appears to be fuch; that the whole fociety are as it 'vere always before him *, The members ofthe fociety devote them- felves, the movements of their minds and * Inftit. Soc. Jefu, V. ii. p. ,25, n6, Regul« i»oc. Ar' de forma fcribemJi, bodi les I 272 ] hodk$ td the difpofiton of the fathcr-ge« net ai *, to be as dead careaffes without vo- lition or life of their own» and ae a ftaff in a man's hand to be direded at his will f^ They are to difcover every thing they know or think to the father-general, re- lating to the fociety, and to themfelves 1^ The revenues are to be laid before him ||. • Whatever is accepted by the provincial and fub-governors of the order, is always accepted under a refervation for the ratifi- cation of the father- general. Vide Decree of the Congregation 1558. Bull of Pius V,; 1568. Bull of Gregory XIII. 1576. Decree of 1 5 '"i I , in the formulary of the act annex- ed to it. Vide Acceptation of P. Viole of 4>* £pift. praepof. general, p. 24. . j* Conft..p, t, c. 2. § I. Inft. Soc. Jefu, vol. i. p. 407, ib. p.4o8.Examcn.Gcn.cap. iii.§i2: Ibid, p. 344, 345. Declar. ib. p. 345. Exam. Gener, cap. iv. §8. ibid. p. 347. ibid. c. iv. § 36, 38, 40, ibid. p. 351. ibid.c. iv. § 35. ibid. 35c 'iH^^ X Conilit. p. 9. c. iii. § 19. ibid. p. 438* I Conftit. p. 9. c. vi. § 3. ibid. 442. the 273 '] the college of Tourno", and prod&i the general, Oaober 28th i c6o,' Vide Aa: of Acceptation of the Hotel d'Anville by Claude Matthieii, 12th January 1580, provincial of the fociety of France, Whicli runs, t'ant enfon jio^n'^uc de tout le dlt orkre tt quia promis defaire ratifer la d'lte dccep^ tation au R, P. general de la fciet/ dans fx mois prochaln vcnant *, ' ' Vide Contraa in 1622, between the mayor and echevins of the city of AngoU- Hme, for the college of that city, and father Cotton, provincial of Guiennc, who paiTed it,^a/ raveu et autorite dc tres revcrefidif fme P. Mutio Vittckfchi general de lei^ congregation refident a Rome, duquel ilfi filifort, et a proffiis de fournlr lettres dac- ceptation et ratification. Vide Recueil dcs pieces imprimees par leMapdcment du Redeur en 3626, p. 7. ■ -^''- ~ • y.V * Kiaoire o'e la V^ile de Pari., par F.libien, torn, lii, p, 722, ■^f^^ Yid^ V*'de the fame Refervatlon to the fatl{^ general, in the Contrad of P. Boette, made m 1^23, for the college of Sons, with the mayor and cchevins of that city, ibid. p. 75. The powers of the Aiperinrs to P. Boctte zxcy fub bene placiio pat ris gen r alls y cujus Jit rem totam confirmare^ipotejatemfacientis obligajidtfocktatem. Vide ibid, p,- 184. Arret of the Parlia- ihent of Aix in Provence. Vide in the fame termSifub beiie placito, &c, the acceptation of the fern? u . i'y of Strafbourgh in 1 6 8 3 . , in 159 J 5 tfje donation made by Be la Grange, who turned Jefuit, was made to- the company in the hands of the father Claude Aquaviva, general *. This donation' was difputed by the donor's family. In 1730 the fociety accepted of the foun* dation of a college made by a canon of Au- * Arret dans ]c Recucil de plaidoyers no^ tate, Paris, 1645, p. 106, &c. tuw Xxxtiprovifioiiu J. On tiicir fuppHcatlon to the general, his refcript authorifed them to accept it, but wii a ialvo refpefting tlie dil- poflil of the revenues of the foimdauon ; it a tamcu ut in omnibus injiituti n> ' ratio fervciur *» In thedeed ofthc iftFeb. 1745, b} ich father Ploufidon, reftor of tlie college of Bourdeaux, accepted the donation of ten thoufand li s made to the profefled houfc in that city, and approved by the general, it ends thus ie toutfous lebonplaijir de noire R> P. genera/, et felon I'ejprit de nos csn- Jlitutions. In the article 1 609, propofed bv the father Nevelet, redor of the college of Rheims, for uniting that college with the univerfity, and in the decree of the i 8th OQi, the very firft claufe is, fahis i?if .utifui kgi^ bus et priviifgiis quibus a fcde apojoiica Gonattjunt. * .-u^fa.. * Oeuvres de M. Cochin, f, 4. Memoire pour Ics Jefuites. T2 Jn IMAGE EVALUATION TEST TARGET (MT-3) <^\^s '-^/. rf> 1.0 I.I b£|28 |2.5 ■ 50 ^"^^ mlHH 2.2 ui u4 us Ban UUt. 1 2.0 iim 11.25 \U 1.6 < ' 6" — ► V] v: (9^ -(^ Photographic Sdences Corporation Vj- 33 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ^ ^^^ [ 276 J i Jii the* caufe of De la Make, before tlic grand council, 1750, the ratification oi the father-general was produced*:^^^. ^.^.,f^^ ',-ni =In the cafe of a eontra^fc made by two Jcfuits with the univerfity of Caen, in 1 609, the fociety infifting that the father- general had not given his confent, they obtained the confradt to Be declared nulf; and they produced the letters patent, whereby the contrad was fo declared in a caufe they had with the univerfity of Caen 111 1720. The univerfity of Paris made" good ufs of this very fame precedent againft the fo- ciety, by ihowing in a fuit with the uni- -yerfity of Kheims in 1724, that the de- cree of 1 609, and the tranfadion of 1617, which they pretended had united the fo- ciety with the univerfity of Rheims, were not ratified by the father-general, and therefore were null. The •fii t ^77 ]' "The union of all the houfes of the mlf- iions in general, and of the mifTions and houfes of New France or Cana^^a in parti- cular with the body of the fociety, appears from the contrad: of father Biart, fupe- riors of New France or Canada, and father Ennemond Maffie, in i6i i, in which they ftipulated on one part, iant pour eux^ que pour k province de France, et la dite compagnie de Jefus (the contrad: related to the cargo of a fliip bound to Canada), and oil the other part, viz. of the merchants contradors, the terms were les ajfocih y confentent que les dites Jeftiites, tatit en kur nom qu'en la quaBte fufditejouijj'ent et ayent a leur profit la tot ale inoiti} de toutes et cha» cunes des merchandifes^ profits^ et autres clio- Jes, circonjiances, et dependances So that the province of France, the province of Canada, and the whole company are indivifible in their interefts and property. The univer- sity of Paris produced an authenticated .copy of this contrad: in a law fuijt with the ,,r 3 T 3 Jeluits t 278 ] Jeiults in 1644 * It fhows that the houfe of the miffions depends upon the jprovince, tne province upon the fociety, and that all the miflionaries its members are but agents of the company, which is united, as we have already fhown, under one principal director of unlimited authority. Thefe ideas of the fociety, and of the titles to its pofleflions, are confirmed by the pieces written by Jefyits, and publifhed by the authority of their order in their famous difpute with all the reft of the regulars on the occafion of the edia of the emperor Ferdinand IL in 1629, for reftoring the pftatcs of the empire which the proteftants had taken away. The champions of the Jeiuits infilled, that no other orders could take but themfelves, becaufe the fraterni^ i^i^s were diJHna^ which once held thofe endowments, and were now extinguifhed: ■t^. • • : , — ^x:r^;:\^ ... ># ApoJogie de \ univeifite, Imprimee, 1643. '»''M^.|*-. , , that T 279 j nhat they, the 'Jefuit^, were, on the coc^- ■ trary, one indivifihle prder : that the ge- 'nerals and vifitors of thofe frateriiiti€;8 which were local, had only a power as to •the regular difcipline of each feparate mo- -naftery,; but that thefe vilitors were not (as rin the order of them the Jefuits) like their , general, able to change perfons and pro- perties, ad libitum. Vide, the work of fa- ther Layman, printed at Dilingen in Sua- 'l)ia, cum facultate fuperiorum, intitled, Jufta defenfio Sanctiffimi Pontificis, Auguii- tiffimi Csefaris, S. C. R. Gardinalium, E- .pifccporum, Principum, et aliorum de- inum Minimse Socief^is Tpfu, in cauf^ Monafteriorum ex^niaorum et bonoruoj ;£cclefiafticorum vacantium. ^Father Jean Oufius, who wrote at the fame time a book, •-•entitled, ^/ri inextindli Eclipfis feu Mi^ quium, ufes thefe words which defer ve at;* rtention, and afFea the cafe of a canqucred country, Generalis ipfe, tanquam capqt .iJUius veri corporia politici, iurifdiaionem •T 4 hab^t [ 28o ] habet quafi territorialem\ nam ipfrua jurif- did cffeclually reiifted the Popes themlclvcs, Jby having made themfelves neceflary to the papal fee. Thus all the attempts to leffen the power of the father-general, and to change the conftitution of the order have ncv^r fuc- -ceeded; Paul IV. Pius V. Sixtus V. Clement VIII. attempted it in vain. And when the parliament of Paris coafented to re-eftablilh the Jefuits undei" certain refer- vations, as before they had been admitted provifionally in the afTembly at PoifTy, the Te-admiffion was in confequcnce of the fo^ ilicitations of Henry IV, and in confe- •guence of his treaty with the Pope^ the Pope acquainted the King, and the King the parliament, in refpedt to the articles gue le general da Jefuites ne sen contentoit ^as & neks vouloit approuvey,, dijant^ qu'ilf <6 etoJmt f 283 ] itoient contre leurs ftatutSy dont !e dit gene-- ral ecrivit au rot lettres qui pouvoient etre prefentees, et mfont encore les articles ap^ prouvh par lui. The King added, that it was a great ppint gained of the Pope, to admit the order in no other way. The parliament entered it upon their regifters, that the Pope had defired the King toefta. blifh the Jefuits, comnte ils etoient aupara-vant ^ arrH de la cour de 1594^, and re^efta- blifhed them accordingly. It may not be improper to infert the fpe- cial claufes of the ad of Poifly ; which if acquiefced in, the Jefuits muft have quitted France. The firft confideration was, that they fhould not be received as . religious iociety. Second, that they fhould take another name. Third, that they fhould fubmit to the jurifdiaion, fuperintendance, and correaion of the epifcopal diocefan. Fourth, that the company fhould not at-* tempt any thing to the prejudice of the fcifliops, chapters, reftors, univerfities, nor of [ 2U ] of the 6thcr orders : Fifth, that they fhould conform themfclves to the ancient la^s, rthotineing cxprefledly and prevmijly ali the privileges contained in their bulls, in- confillent with the foregoing articles. Au-^ tretnent a f ante de faire ou qiia lavenir Us en ohtiennent d^atUres, les prefentes de- meureront nulles et de nul effet et vertu. And the a£t concludes, with a Mvo^faufle droit Ae la dite ajfemblie et d'autrui en toutcs chofes : and when the ad came to be regillered by the parliament, the con- ditions cxprclTed were confirmed, and the concUifions upon the articles were, that the Jefuits were received guant a prefent, &c. a la charge dcs les rejetter Ji et quand ft Cip7'cs ih feroient dccouverts etre miifibles ou faire prejudice an bicn et ctat du roy-^ mwie. The Jefuits allowed all thefe conditions and provifions of their original admiffion t-o exift, according to the ad of the affem- l>ly of PoiiTy (none of which the focietyi either f ^5^ ] either have fulfilled, or could poffibly fuU fil from the nature of their inftitu tion) among the pieces which they produced before the French king in 17 15, in order to obtain the declaration of the 16th of July, the words arc, ^ui/s conviennent de bonne foi, que par laae de Poijjy, et par i'aBe de la cour qui en ordonne l\nregiftrement. Us nefurent re^us comme rellgieux. Vide Inventairc im- prime, figne De Sacy, avocat. P. Hazor?, Jcfuite, procureur-general de la province dc France, pag» 6. The diHindlcm they have endeavoured to fet up, between the colleges and the order, is neither fiipported by fad, nor by the inaitute of the fociety. For it appear* from all the foregoing proofs of their in- ftitute, 'uit there is one chain of dcpen- .dence ; that the colleges are not diftina: as communities from the body; that the pro- fefTcd Religious hold in truft for the col- leges: and, therefore, the conchifion is, %t \i, according to their own confcffion, the t tu ] the Religious of the order of Jcfuit« ^ re not received as perfons capable of a civil exiftence, they are incapable of the truf. , and then the colleges are incapable of the ufes. Thua every thing, built upon the foundation of this anomalous fociety, falls to the ground together. And it is no wonder, that an inftitution, which feems contrived, with a fubtlety more than hu- man, to fubvert the laws of every country ccclefiaftical and civil, fhould find in the laws of every country an obllaclc to its eftablifhment. N U M-. [ 28; J \iin>i *^:u NUMBER rir. •'^fl Concermng the ancient Ordmances and Laws of the Police^ ^ ? *. > TN addltbii to the adpropofcd, under X the head of the Law of the Province,, it may be right to confider the following ordinances made by the governor ai.J, . council. An order concerning the hccnfing of public viduaHing houfes, February 23 1768. ^ ^"^ An order for preventing accidents by fire, February 23, 1768. An ordinance to amend an ordinance of the province, relating to the affize of bread, April 5, 1768. An ordinance repealing a claufb in a former ordinance of this province, dated ^^y 5» 1765, concerning the ourrency of this province, April 5, 1768. Ant r 28S ] An ordinance to amend and enforce & former ordinance for preventing accident* by fire, November 3, 1768. An ordinance concerning bakers of bread in the towns of Quebec and Montreal, May 30, 1769. An ordinance to reftrain houfekeepers of viaualing houfes from felling liquor by retail upon credit, beyond the fum of half a Spanilh dollar, May 30, 1769. As there are fome ordinances referred to in the above, which arc taken from the colledion of Mr. attorney-general Ma- zeres, which may be proper to be con- firmed, fo far as they are not repealed in any part by the fubfcquent ordinances, it would, in my opinion, be very right, that copies of all the ordinances iffued by the governor and council fhould be laid before U8, to fettle in the whole what ordinances may be proper to be conHrined. I am ■ l"^ ''''° "f opinion, that the followine arrets edifls. &c. ftould be confidered whether they „ay be proper to be adopted. Arrgtfervant d'ordonnance du confeil rouveramda.ethjuillet .768. concern- •ng hunting and pafling upon lands which are fown. and breaking encloVures. Arr^t du confeil detat du Roi. 4 Jui„ f • ,'°"<=""«S the buildings of mil], ^d Jons, and rights caHed the Broit de J' r? \' ^'°^' *° ™«te perpetual' the Arret du confeil d'etat duRoi de anas J ftch grants are therein declared ftall aaually procure the faid lands to be redded upon, occupied, .,W„ ,,;,,,. «r PUI in ufe within a year. U Dccia- f ?9? ] 4 January 17^^. Declaration du^Roi^, 6 Mai 1733, No. I. Declaratipn du Roi, 6 Mai 1733, No. II. Thefe three ^^U^^^ tions are concerning the regulations'of nol faries, who muft be of great ufe in ^ province where fo few people write and read : and have, by the civil law, a qua£L ju^iidic- tion, as it is termed, or of record; and a^ their modes of making publip afts in me- moriam rei, in refped to coijtraas, eorre- fpond with fo much of the French civiUaw as is to be retained, thefe declarations deferver to be looked into ; and the regulations and authority of the teftimony of notaries may be found to be proper to be confirmed in all cafes, where viva voce evidence upon- public trials is not required. So that ta their ads and feals, as inftrumental evi- dence, (to ufe their ^jlt). full faith my be given in judgment and thereout, being, by the civil law, equal to the evidence of two. witnefles. ,.,,,gfy Decla- ■J • y'i ■ Declarations du RtjJ, du m^^ , »?*., i- Fevrier ,74-3, concerning in^.'nk, «nd the manner of appointment oF g„ar: dians of their perfons and curators of theiP eflates: excepting the propofed alteration ot the age of majority; "' •",:•;>!.' "' ''■■■■ J .;, aiiijw Ar^ft du coaftil du Roi, 6 Jiiilfet rff 'f'' concerning the grants of lands to thj feigneurs by the crown, and of the fd^i.' »?urs to the inhabitants of their feignbril. under them, , titre de redevance, pr f5xedi referved rents, when the inhabitants ftalt demand lands to be granted to them. ^ "^ It Vfill be extremely right to feethe Re- glement da. Roi, . ^January , 7,7, concern^ .ng the fittings of the admiralty court. OrdonnanceduRo},du ajDecembret 7^ concerniFJg the dcfertion of feamen. Arret du confeil d'etat du Roi, concern- »ng the regulation of the rights and dues, of the officers of the admiralty. Decia- I 2^2 3 Declaration du Roi, 6 Mai 1733, wfilcH cftablifliL^ the rules for the form of and de- pofiting deeds of marriage fettlements in Canada. Reglement du Roi, du 9 Juin 1723, nvhich regulates what is to be obferved concerning the grants of feats in the churches of Canada. ■ , ■'-' .^- *^-* '■ ■ Arret du confeil Souverain 20 Juin 1 66j^ concerning the manner and proportion of tithes, de treize une, or one in thirteen j le droit de moulure, or tolls of mills; a la quatorzieme portion, or fourteenth. Eila- bJiffement de Ph&pital a Ville Marie, (other- wife Montreal) by letters patent of the King, 16 April 1694, , Arret du confeil d'etat du Roi, du 16 Mars 1732, concerning the fale of woods landing. ji*^ T H E E N D. e- in le 3f le la L- IC