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Les cartes, planches, tableaux, etc.. peuvant Atre filmAs A des taux de reduction diff Arents. Lorsque le document est trop grand pour Atre reproduit en un leui clichA, il est filmA A partir de I'angle supArieur gauche, de gauche A droite, et de haut en baa. en prenent le nombre d'images nAcessaira. Lea diagramme* suivnnts illustrent le mAthode. 1 2 3 4 6 6 lu MR. LAPORTE'S CASE. IkSE. w^^p^"^^ u J^ STATEMENT OF THE CASE OF MR. JEAN B. LAPORTE, HEARD BEFORE HIS EXCELLENCY LORD METCALFE AND THE HONOURABLE THE EXECUTIVE COUNCIL OF CANADA, NOW UNDER RECONSIDERATION OF THE RIGHT HONOURABLE LORD STANLEY, H. M. SECRETARY OF STATE. THE merits of the judicial contestation, between the Crown and the Ursuline Nuns, are suffi- ciently developed in Mr. Laporte's printed case, and the Appendix, of which copies were transmitted to Mr. Ogden. Although the course, directed by the Governor General, that the parties should be heard by Counsel, before His Excellency and the Executive Council, was unprecedented, and seemed un- necessary, after the Attorney General's report in Laporte's favour, it was deemed expedient that Counsel should accordingly appear in support of Mr. Laporte's claim. The only point in issue, as appeared to Laporte's Counsel, was, the condition, attached to the grant ordered by Lord Stanley, in favour of Laporte, in these words, " assuming that no legal " question can arise as to the right of the Crown to the property," (Appendix No. V,) and the im- pression in that respect was confirmed by the remonstrance of the Nuns, against Lord Stanley's decision, (Appendix No. VI.) wherein they obstinately and disingenuously persevere in denying the title of the Crown to the Beach, while they inconsistently pray for a grant of the property, in dispute, at the hands of the Crown, on the score of their being the Riparian owners. " Mais vos suppliantes representeut de j'lus, que mSme d'apresZe strict droit, les rivages des " fleuves appartiennent a ceux qui sent proprifetaircs des h6ritages voisins, sauf toutefois qu'ils sont " assujettis a un droit de servitude naturelle, qui consiste dans la facult6 que chaque individu a, de " passer et repasser librement sur ces rivages, pour se rendre au fleuve, pour les fins de commerce " et de la navigation." " lis ne sont done pas une veritable propri4t6 dans les mains du souverain, mais ce n'est qu'un " dep6t qui lui est confie ; et il n'exerce sur ces rivages que les droits qui appartiennent a tons ses " sujets qu'il rcprescnte." " Si ces principes sont corrects, il s'en suivera que le souverain, en alienant les rivages du fleuve, " ne peut ceder plus de droit qu'il n'a lui mfime," &c. Therefore it created no little surprise, when the Counsel, in the name of the Nuns, but in fact on behalf of the Messrs. Eraser's, their assigns, descanted on the subject ab initio. His arguments may be thus su^ ictly stated : — That the Nuns purchased fror. xJe Villeray in 1785, their purchase being bounded by the River St. Lnwrenco. That the Nuns, by their title, had the droit de pii he, which was emblematical of possession, and gave them a right to preference. That the name of the place, FAnce des Mires, evinced that the Beach had been always con- sidered theirs. That, in 1808, the Nuns took jjossession, and granted on emphytei'tio lease to Messrs. Colt- man. Counsel gave definition of the emphyteutic contract, and stated that all improvements, at iu termination, devolved on lessor. In 1810, assignment of lease by Coltman to Laporte, who ceased in 1827 to pay rent to the Nuns. In 1827, information for intrusion exhibited by the Attorney General pro Rege. That the laws and usag(!s of the country, establibhed their right of ownership in the Bc-.oh, in consequence .>f their holding the Riparian property. 20th April, 1831, judgment of the King's Bench awarded the property, as well above as be- low high water mark, to the Crown. " 'jitrftir¥rW»lte'f That in 1839 the Crown granted a lease of the property to Laporte for 21 years R.«r ^ ^' [^"''-^''^S'^''''' °f »*>« Court of Appeals restricting the right of the Crown to the Beach, a space between high and low water mark me ui own to the 1840 IndonLTarD''""^ "',!';' *'''' ^«^''(-»«-^^ by Lord Sydenham 11 th June of Assembly, for relief, in IS., .hich hody, since that ^r^Z^Z:^:^;^:!^^^ owner ort't """" ^" T '"''"' '" '' ^''^ P'^^"^'"" ''' '""^ ^'^'^^' ^"^ the Crown is not the owner of u, hav.ng, for the public, only a servitude on it for navigation, &c Stated the report of Governor and Council of 20th September, 1843 (drawn by Mr Solicirnr General Ay w.n,) w.th the subsidiary reports of 11th November and 13th DelmbL 1S43 ' h vertmg the former reports of the year 1841 i^ectmber, 1843 ; sub- ^ '^«""i«'-' P- 24.-NOUV. Den. Domaine de la Couronne § V D 600 n.l.n , p . Francaises V. p. lO.-Merlin Qu. de droit Vol. XIV. Rivages p il6 '"' "''^'''P^'-^''' ^-^'^'=»- As to usage-it was contended that there was no precedent of a jrrant of the h..,.. It was argued by Laporte's Counsel, as follows :-That all question, n, t. r.i , u ■ That the conduct of the Nuns was rather inexplicable for while th..- i *», ■ That h,s title was founded on the Reports of 11th May and 13th Dece.nber 1841 wi I. ,1 confirma ory d-spafh of Lord Stanley of .lune 1844 ; and 'on the facts of Lap rte s avi ; '! acted on behalf of the Crown, who fixed boundaries of the «rant to Lanorte n,»l n,l. superficial conteul., conformably to the said reports and of 1 nl . • admeasured .ts the terms, and his read.ness and ofler to pay trpu^ba: 1^7''' ^"'^^'^"^"^ ''''''''''' °^ thecL:LlTr'""'"'^"'^^'°"''' •'^ '^°"«'" -'^^ theconstderntionof His Excellency and 26th ^ptr:;';T.:s t:t:r ^^"""^^"^ ^°""'"^' '- ''- ^'^-^ -^-^ ^^"-^ ^--". -^ wate^rt Wr C.!::.'^ "' ""^°" " '""'^ ^''^ ™^ "^"^^^-^ - «^« ^-h of navigable port, t Z!!::!Z '"'""'"• '^°"""' ^'^^'^ "P ^''° P^'^'"^"™' «^^'--^« -'I "'^-n.s of that Re- ■ a That the argument, founded on the nature of the Emphyteutic Lease, might hold good, if the hnd leased below high water mark belonged to the Nuns ; but that property was adjudged to the Crown, and the improvements made, on it belonged to Laporto ; who, according to our law, could not be dispossessed, even by the Crown, without indcmniticaticn for them. That to deny the value of the information given by Laporte was unjust ; for, until he urged the matter on the attention of the Provincial Authorities, the interests of the Crown, as to that valuable part of the Royal Domain, had been neglected, and the question, as to the Title of the Crown to it, had been suffered to continue a matter of doubt; his conduct strikingly, and favour- ably to him, contrasting with the demeanour of the Nuns, who concealed aiid pertinaciously dis- puted, and even to this moment impeach, the Title of tlie Crown That as to the existence of an invariable rule to grant the Beach to the Riparian owner, nothmg could be so untrue, or more destitute of any foundation, because grants of Beach Lots, adjoining the Riparian land of the Nuns of the Hbtel Dieu, River St. C:iiurles, were made to Messrs. John Anderson, John Bell, Jacob Pozer, James M'Callum, against one of whom (Anderson), those Nuns had brought an acti(.n of ejectment, founded on their supposed right, which was afterwards hope- lessly abandoned ; and other Beach Lots in the Port of Quebec, adjoining the land of the Seminary, had been granted to Messrs. Bull and Shei)pard. Besides, it appeared from the highest authority on such a subject, (that of the Hon. F. W. Primrose, Inspector General of the Queen's Domain, Appendix, No. 0), that the invariable rule had been, to grant the Beach to the persons who had improved and reclaimed it. That, with respect to the position that the Nuns were on the same footing as other subjects as to preference in this matter, its truth was very questionable ; and even if such equality existed, it might be applicable to those parts of the navigable waters, where agricultural operations were carried on down to their margin, but not to the Beach, in such a port as that of Quebec ; and particularly as the Riparian property of the Nuns was a cliff of 300 feet ahitude, rendering all access to the waters of the St. Lawrence impracticable ; and that it was the duty of the Crown to grant such property to persons in secular life, who would render it useful for the purposes of commerce and navigation, and not to a body in Mortmain, composed of members, supposed in their seclusion from civil life, to be dead to all worldly and speculative pursuits. That, as to the sale of Lajiorto being incomplete, as pretended by the Report, enough had been said on his part to shew, that, independently of the preference due to him as having improved and reclaimed the soil, all the elements required to form a valid Contract of Sale, were there. Res pntiurn et consensus. And that, even looking at the orders in Council of 1841, and Lord Stanley's dispatch, and the proceedings of the Government, as only « promise of sale, the laws of Lower Canada regard a promise of sale, followed b/ tradition and the possession of the grantee, as equivalent to an absolute sale. That the argument derived from the order in Council, of the sale being made by Government to Laporte sans garanlh; by which the weakness of the Crown's title was admitted, is unfounded and absurd ; for, how could the title of the Crown to the Beach be reasonably, for a moment, doubted, when it had been solemnly coiilirmed by two concurring judgments, unreversed to that extent, and recognized and acquiesced in by those very Nuns ? la truth, the object of the recom- mendation of the Council, was to avoid incurring costs, by investing Laporte with all the rights of the Crown, leaving him, at his own expense, judicially or otherwise, to ascertain the true line of division between high water mark, and the adjoining property of the Nuns. That the plan proposed by the Report (2()th September, 1843) of exposing the property to public sale, would not only be illegal and unjust, as depriving Laporte of his vested preference and title, but would be futile and onerous to the Government, who would bo obliged to indemnify Laporte for his improvements, and could not, without oppression, withhold from him the price to be obtained, which would represent the property substantially, if not formally by Letters Patent granted to him. Counsel further said that the conduct of the Nuns, throughout the whole transaction, exhibited gross mulafidcs. They disputed, and still impugn, the title of the Crown, while they seek, from H. M. Government, a grant of the property,— by which they would enrich themselves, out of Lajxirto's improvemcnlH, made at his solo expense, on the property of the Crown, and defeat his claim, preferable not only according to the p'-actice prevalent as to grants of such property, but in law and equ'ty, and under every imaginable view of the case. Conscious of the infirmities of ^ their pretended title to tiio Beach, the Nuns, having sold to the Messrs. Frascr, 11th June, 183'i, between the date of the Judgment in the King's Bench and the J udgmcnt of the Court of Appeals, the Beach- Lot in question, caused Messrs. Frasers to execute a deed of the same date— whereby they were absolved from any obligation of garantie, and the Messrs. Frasers boui^d them- selves to prosecute the appeal in the name of the Nuns, but free of expense to them. That these Contracts, on the j.art of the Nuns, constituted a sale of a disputed Title, droits litigieux, which was severely reprobated, by our Civil Law, and penally condemned by the Statute of32Henry VIII, ch. 9. That this piece of misconduct, if not of moral turpitude of the Nuns, was the consummation of their bad faith ; and they forfeited all pretensions to the consideration or favour of the Queen's Government. On the second poiiit, Laporte's Counsel observed that the perverse adherence of the Nuns to their supposed title to the Beach, notwithstanding the judicial dicisions to the contrary, had its source in a total misa])prehension of the terms rive, rimgrs, ripa, erroneously and inexcusably applied to signify the Beach or space between higli and low watcr-iuark ; whereas, the rive or ripa forms no part of the Beach (for which word the French language did not afford any precisely corresponding term) but is the bank (honl) of the river. He argued that, according to the French Law, from time immemorial, the right of the Crown, founded on the Roman Law, to Rivers, Ports and High^vays, had always been recognized ; so much so that, by the provisions of the Ordinance of 1069— and of the Edict of 1683 (not in force in Lower Canada), such property was declared inalienable ; but ail the grants of the Crown, of such property, made, according to the prerogative as it had existed, previous to the Ordinance de , Moulins 1566, were ratified. So that the condition of our law is that of France before the Ordinance 1566. The property of the Crown in Rivers extended over the ahem, the whole bed between the banks, ripm. " Trihus jlumina constant, alveo ripis aqua" The ripa, rive, is the bank and margin of the river, down to high-water mark. Ripa est qua jdenissimumfiumen continet ; and it undoubtedly belongs to the proprietor of the adjoining soil, subject to a servitude or easement in favour of Her Majesty's subject, for the purposes of navigation and land carriage. " Riparum quoque usus publicus est jure gentium, sicut ipsiu.s fluminis. Itaque naves ad eas " appellere, funes arbc-ibus ibi natis religare, onus aliquod in his reponere, cuilibet liberum est, " sicut per issum flumen navigarc ; sed proprietas earum iUorum est, quorum pricdiis haerent ; " qua de causa, arbores quoque in eisdem nataj eorumdem sunt" — Jusliiuan Institutes — Lib. II. tit. 1, H- These are the relative rights of the owner of the ripa and of the public, and their very na- ture and the mode of enjoying them, wholly exclude any supposition that the land, on which they are to be exercised, is at any period covered with water. The reservation of the road or chcmin dc hallage of twenty four feet, above high water mark, existed from time immemorial along the banks of rivers in France (see Ordinance Charles VI. in 1415), and it was a public highway, vested like all other highways and rivers, in the Crown.* It formed a space or band of public property, between the soil of the adjoining owner, and high water mark, all below which belonged to the Crown. That, mon the same principle, the rights, of the Crown to tlie «pace of 24 feet above the high- est tides, had been asserted and recognised in Canada, as necessary for the purposes of naviga- tion and conununication by land carriage— (Ordinances, 13 IMay, 1005, apud edits et Ordonnan- ces II, p. 120) — and the erection of any fence within that space, by the adjoining proprietor, was declared a nuisance. abateai)le by any sul)jcct of the Crown. Independently of the decisions in the Provincial Coiufs in the contest between the Crown and the Nuns as to the Beach, and of a recent judgment re« situ6es le long des riviSres" — of which (de ces Icrrcx), under the old Government, greedy persons had obtained grants from the Crown, in fraud of the true proju-ictors. But, assuming that Toullier's language can be distorted to signify that the preferable rights of the Riparian owner were admitted by the French Government, as a general principle in the coun- try parts ; it cannot reasonably be contended, that this rule alone shall not be subject to any ex- ceptions, although the situation of the property, in tliegreatest port of British North America, and peculiar circumslanci's atlocting the case, would, from expedience and in justice, withdraw the matter from the operation of such rule. And so the general rule laid down by Lord Stanley's dispatch,! 1th of September, 1833, is not inconsistent with his dett.Mniination on Laporte's claim, being an exception justified by con- siderations of ])aramount importance. A, UUCHANAN. MoNTRBAL, Kith October, 181;i. Memorandum or Authoritie.-! iiv thk matter op T. B. Laporte, Ci.aiminc a Beach Lot. .4s to the right of the Crown to all. Itiuers, their Beds, including t(t.e Reach, and to till Ports, Highways, ^•c. " Tout ce qiii est destine et delaisse a I'usage du public est cense appartcnir au Roi. Telle- " ment que la loi mlvo — paragraph si insula D. de acq. rm: dom. et aulres seniblables ; qui attri- " buent la propriete des isles, javeaux, atterissemens, et aBsablisseirioils, aun detenteurs et propri6- " tairesdes heritages adjacens. proches et contigus des fteuves et rivtfeltjs navigables, ne sont recus " ni pratique en France." — Baajuct, Dts. de Just. cli. ai, Nos. 4 & 0. " Aujourd'hui en France, les flcuves navigables appartienncnt aiu Roi. (Cites Bouteiller, Bac- " quet, le Bret, de la Souv.)" — Dcpeissrs, vol. vd. p. iil'i des Droits Seig. lit. 5, art. 3, sec. 9. " On distingue deux sortes de liouves, les navigables et non-navigablos. Les premiers appar- " tiennent au Rni, avec tout ce qu'il renferme, comme isles, '.noulins, pouts, pitches, tStc." — Renauld Diet, des Fiefs et Flciires, No. 130. " Cette declaration, du mois d'Avril 1083, vent done que particuliers puissent jouir des fleuves " navigables, lorsqu'ils sont fondes en titres authentiqiics auterieurs a I'annee 1.501s ou en possession " dont le commencement remonte avaut la dite annee, ])ourvu quelle ait ete continuee sans " trouble." — Renauld iltid Xo. l.'J3. Dic/ionnaircdu Doinaine e. liieiere, 490 to the same effect. " Le Procurcur du Iloi en la Cour de Parlcmenl do Paris (c'est Chopin qui parle) demanda " que les isles du Rhone et de la Saono fussent reunis nu domaine du Roi, et tons les moulins a " bled, les peches, et autres droits (jiii elaicnt elabiis en Tuuc et en I'autre rive de ces deux " rivieres, centre rArcheveipi.; et elerge de Lyon. iMais la Cour ordonne, sur unc si grande af- " faire, qu'i'lle verrait les tilres, et en delihcrerait plus ainplement, et cependant donna mainle\ee " provisiomielle pour rarehe\eqiie, it elcrue de i^yon. par arret du 2 Oct. 1530. Quoique cet " arret ne soit (pic provisoire, ci'pc iidaiit il est \ lai di- direr i[v''' jnge tres discrtcment que le " Roi pout alicncr le sol des rivieres navigablrs, <'ouime toules les autres jjiirties de ses do- " maines." — Ifriirion dc I'ansey, Dissert. Fvodtih s n France, he continues •-" S laloi RoLine veut que le do.naine publique embrassetout le terre.ndonun par r,: cours des eaux. et qu'il setende jusqu'a et co.pris les bords qui servent a es conten.r lorsqu elles ..sontarrive^saleur plusgrande 616vation. snns etre accidentellementd.bordees."-Pr.u./Ao«. "'''« En'^We, depuis I'ord. de 156.», s.r I'inalienabili.e de domaines de la Counmne. et notam- .. „.ent depuis IW. sur la n.arine de 1681, les bords et ri.a.es de la n.er ont .te soustraUs a la .. propri6t6 privee et la disposition en a ^e reservee a la nation, a t.tre de souvera.nete . . .1 .. InZdLe des fleuves et rivieres navigables .,u ,lottables."-i)a.e/. des Cours d Eau., 1. No. '* '": Quomodo autem intelligatur alveus esse publici juris 1 Die quod omnes gentes isto ju.. .. utuntur,et talia loca sunt publica. et in dominio ejus, qui .b. habet imper.un,.' -C.;.o//« ae Serv^. ""' AirrC Mg^ watef :';U, they (the Ro.an Jurists) considered as ripa, bank , and all be- « nfecessairement publique, de merne .lue V usage de s.s ri.esr-Compl. Tr de la proprrete I.p. 264. •La Monarchic absolue, sortie du regime feodale, reclame, comu.e fa.sant part.e du domame «de la Couronne, les fleuves et rivieres navigables et flottnblos, et ne recommit aux part.cuhers, " que les droits qu'il lui plaira de leur conceder.'— t'0OT/>te, /. 279. » En France, I'obligation impost^e aux proprietes riveraines de fourmr a la navigation un « chemin de halage. existe depuis les terns les plus recules. Le regloment de Charles VI.. du mois « de Fevrier 1415, constate qu'a cet.e epoque ce rhemin etait 4u depuis un terns immfemorial. - CoOTpte,/. p. 347.— iVb60 diximu idem et ^e ripa tenendum est, v^^- i'^r., est eHima ahex, id est quo naturaliter flumen excurrit.-Gro//»s, de jure belli et pans Lib. n. c. 8. s. 9. Edits et Orde.— ^rret II. 126. Provl. Act. 1 Will. IV. c. 38. 6 Will. IV. c. .5.5. Judgment in Q. B. Quebec, June 1845. Sampson v. M'Aulay. See Appendix X. to Laporte's case before the Governor and Council. _ These authorities show beyond the possibility of doubt that, although the bank, npa, rtveof a navigable river, may belong to the subject possessing the adjoining land, the river, its bed (alveus lit), being the space between high water mark on either side, together with the chemm de [It au Kui, u tec. 4. He s its various mal dans le- B le remplit, efevre de la : n'a 2>oint de lans dihorde- omme tel, ne iblic, et d'en de sans cesse I fleuve ou de arder comme !nt a contenir bordement. — tit. 48, tit. 12. in France, he ;in domin6 par nir lorsqu'elles ." — Proudhon. nne, et notam- soustraits a la lete .... 11 d'Eaux, I. No. Rentes isto jure ipolla de Servi- lik ; and ail be- e «ct«a/, as well act on Leung- perpetuel, 6tait tprie'te I. p. 264. rtiedu domaine lUx particulicrs, I navigation un les VI., du mois immemorial." — extima alvei, id mk, 1-ipa, rive, of he river, its bed ith the chemin de halage of 24 feet, are the absolute property of the Crown. And, therefore, we may, to use Lord Stanley's expression, — " assume that no legal question can arise as to the right of the Crown to " the property." In England the prerogative right of the Crown ia not so extensive, and the Riparian proprie- tors enjoy greater privileges. See Rex v. Smith Doug. 446. (Hale de jure maris pt. i.) oh. 4. p. 11, 12, 13. Chitty on Prerogative, 143, 174. A. BUCHANAN. MoNTEEAL, 10th October, 1845. London, 34 Charles Street, Berkeley SauARE, \5th April, 1846. Sib, — Before entering upOi. the questions now to be submitted to your consideration, arising out of the long litigated claims of M. Jean Bto. Laportc mid the Ursuline Nuns of Quebec, I beg leave to offer my grateful acknowledgements for the opportunity you have afforded me of doing so. The merits of the Judicial Contestation between the Crown and the Ursuline Nuns, will be found to be sufTiciontly developed in -M. Lupurte's Case and tlic A])])endix, of which, I am in- formed, copies were transmitted to the llight Honorable Lord Stanley. Although the course directed by i!ie Uovenior (Jeneral, that the parties sliouM be heard by Counsel before His Excellency and the I'iXecutivc Council, was unprecedented, and seemed uncalled for, after the Attorney General for Canada East had reported in M. Laporte'a favour, — that gentleman being constitutionally the only legal adviser of His Excellency and of the Council, in respect of all questions of law in that port of the Province, it was deemed expedient, as it apj^sars that Counsel should attend in support of Mr. Laporte's claim. The only point in issue, as appeared to Mr. Laporte's Counsel, was the condition attached tf^ the Grant ordered by Lord Stanley iu favor of M. Laporte, in these words, " assuming that no legal question can arise as to the right of the Crown to the property," and the impression in that respect, it will be found, was confirmed by the remonstrance of the Nuns against Lord Stanley's decision,* wherein thoy obstinately and disingcnously j)erscvered in denying the title of the Crown to the Beach, while they inconsistently prayed for n grant of the property in dispute at the hands of the Crown, on the score of their being the Riparian proprietors. " Mais vos suppliantes repre- " sentent de plus, que ni6nie d'ai)res le strict droit, les rivagcs dcs flouves, appartiennent a ceux " qui sont proprietaircs dcs heritages voisins, sauf toutcfois qu'ils sont assujettis a un droit de " servitude: naturelle, qui consiste dans la faculte que chaque individu a de passer et repasser, " librement sur ces rivages, pour se rendfe au llouvc pour les fins de commerce, et de la navi- " gation." " // 11': sont dime pas une veritable prnpriitS dans les mains du souverain, mais cc n'est qu'un " Depftt qui lui est confi6, et il n'exerce sur ces rivages que les droits qui appartiennent a tons ces " sujets qu'il re[)resente." " Si ces principes sont corrects, il s'en suivera que Ic souvcrain. en alienant les rivages du fleuve, " ne pent ceder plus de droit qu'il n'a lui m6inc." It therefore must have created no little surprise, that the Counsel, in the name of the Nuns, but in fact of the Messrs. Fraser, descanted on the subject ah initio. The arguments of the Nuns may be thus succinctly stated : — That they purchased from one De Villeray in 1735, their purchase being bounded by the River St. Lawrence. That by their title, they had the droit de peche, which was emblematical of possession, and gave them a right to preference. That the name of the place, rAnce des Mire.i, eviufcd that the Beach had always been con- sidered theirs. That, in 1808, they took possession, and granted an emphyteutic lease to Messrs. Coltman. That in 1816, the Messrs. Coltman assigned their lease to ftlr. Laporte, who ceased in 1827 to pay rent to the Nuns. That in 1827, an information for intrusion was exhibited by the Attorney General />ro Rege. That the laws and usages of the colony, established their right of ownership in the Beach, in consequence of their holding the Riparian property. 'Appendix No. 6. •• "-.^ • .^. JVrta 'JU.the mh April, 1831. the Court of Ki.»g Kujir'i Beu^ «t Quebec, awarded by its judg- rtv, as wol! above as l> nmit that :|ic property That in 1839 tiio Crown g;a>ue(i >elow hisli water mark, to the Crown, f the property to ."L.aporte for 21 loaso o ■ Appeals by its Judgmem ■ears, restricted the right of the That on the 3!)th July, 18 10, the Goiut oi K«p, ', l:"-. '„,la •..y-L„,-,i s,.ac,.i„n. .1.. ...« ncC, .,»«M bo g™,„d „r. »,,.,« .em,, .o '"'"Tta. o„ .he ,3,1, no,..,,,..,.. .8 ", .« >»«: J«i. « .„. c.>„r,n„o.l by Sir Rioh.rd J«ck,on. ^j:: ;;;:^s;:^:;";; ™ =::i,:"ir "s;,.,.,.,.,,™ ,„ .»«. .bey .^^^> ,beH,;:,i :. A.»..biy. ..,• .*•.; .lic. ^-^ly. ■"■■» ■'»• >«-•' '■"' '-'' >■ """■""-•■ ""t'i"; .boy d, no. ,-.c.e„d .o be .be proprio.,,.. of .bo Uou bu. ,b.. .be Or.™ i. no. ,be "^" T^l'; G::^..:.^ /^:t f^ir Uoport or the ... .-..n... .... and the .^- 1 hat the oo December. 1813, subverted the reports ol the year 1841. "^^^!:::t ;«;.^;t:lb:r I8.I. they remonstrated against Lord Stanley. Dispatch o. ^"^Tha^'as Riparian pn.prietors, ;hoy, in law. equity and usage, were entitled totheBeach. ThH the Zs, JogL of the r.ver beleng to the subject, and oi .he sea to d,e Crown. Thit by usage, tne.^ was no precedent o. a grant of the Beach, except to R,par,an propr.e- ^ '""'Thut Mr Lap..rto'.s p-..ssession .vas merely that of a te,.u„. an.l u.,t of an owner i ; if.. H^^ title w.recunfirm.d to Mr. Laporte, .he hnc ol d.vlsion between Ingh water rnarkand'.hellipana.p. rty of the Nuns, would in.erseet .nany buildings be.ongmg to per- 1 u I I „;w ,>-, thM Reneh reclaimed from the tide waters. ^- "^'^I^re Si^w : tt^g^^^^^^^ upon by the Nuns, to entitle them to the favorable con • . ; \f .he C"own • and it now becomes n.y duty to n.ake such conunent upon then, as I :lrcol- tctr;;.:;;i i„te..e. of M. Lapor.. In the fn-st place, I apprehend that all ou4ions, as to the T.tle of the Crown to the Beach Lot m question between mgh and low wa.cr nark and ihe circumstances <-f the case pri..r to ,he judgn.er,. of the provincial Court of Appeals, SOth Jul 1810 must be whollv discarded, lor as that judgn.ent ha.l not been appeal.-! from, but 'aequiesced in, by the Nuns it const.tuied 7^, JuMcIa, and the property in the Bench was nrevo- cablv conlirmed to the Crown. , ,. , „ ,, . v Although it may be asserted that Mr. Laporte is not po-^sessed ol the lloyal Leiters I atent. vet I trust iMvill be m mv p^.wr to show tha.t he nmst be r.^garded as vx absolute owner of thd property, by grant from ihc Crown, and that tb... Crown is b.,u.,.l. <■- .Miiojuslin.r, to cor.hrm the contract by an instrument of record. , ,. , „ To support thi. proposition. I beg leave sir. L- elain. your nttentive perusal ol the Uep.,rts ot Council on tlu'lUh May and 13th Deconbcr 1811. whiel, were suhse,iu,.ully respectively con- firmed in Coun.'d bv .he ('...vernors of the i'rovinee. and also to ihe eonlMn.atory Dispa.eh ot L ! Sfuiley of Julic IHll, and to the cimsideration <.f the additional laets. ihat Mr. Laporte was ccmu^uied ■■i the possession of his property by tlu; Inspector Cenerai of the Royal Domaine, and .,lv ^ ollieers who acted on belmll of the Crown, who l^xvd the boundaries <.f ".e grant to bin., and admeasured its superficial c.r.tents .-.nforinahly to the saul Re or.s and ol M.-. Lapor.eN sub- g,.„Me..t acceptance of the terms, a.i.l of his have,,, as appears by t,a> .lep'^'t "' "^ • i.iajesty 8 \ttorney General lor Canada East, years since paid tl... price agree.' apon. Und.-r such circum-tanc.'s. but two .p.eslioPs.-Muans,.:- 1st. VVhoth.T the o.,i.'ctions and arguments contain. .1 m lb.' adverse report ot the ^onncil, of aOtii >■■ •'"■•'" r, 1813. are tenabl,-. and. Whether there be any reason io dou!,t tb.' Title ol tlieCrown to the Bea.:h of navigable waters ir. Canada .list. , , , . r i i .. . c.i On the lirs, iiomt, 1 would bey V. rei.ir.rk that ihe argumenl fou.ule.' »a the natur.. ol Iho ^^mi-hyteutic Lease, n.ight h.>ld good, if the land lease.l l,..|..w high water nmrk bel.mg.-d to :he Nuns; but unfortunat.^ly for th-ise rcbgiou hidies. or raili.r ti..' M.ssrs. Vrn.vrjhal prop. My was adjudged to the Cr<.wn. and the i.upn.venu'nls ma.lo on it b.tL.ng. .1 to Mr. Laporte ; vsho. accord- f:- : /' ing to the law of Canada, be it understood, ooald not be dispo«es«ed, even by th^ Crown wi,|„„„ being indeiiinifiod for tlwm. That to deny |^^e value of the information given by Laporte was, to say the least, unjus. ; for,unt.i ho urged the matter on the attemion of the Provincial Authorities, the .uterests ot" th. fT";!f 'V/''"'^" ^"' "■ "" "'-"' ^"'"''^'"' •'^'^ ^'"''^ "''Sleeted, and the ^uesrion. a, to the Title of the Crown to it, had been sutfered to continue a matter of doubt ; his conduet strik- ingly, and favourably to him, contrasting with tlie demeanour of those ladies who concealed and pertinaciously disputed, and even to this moment impeach, the Title of the Crown That as to the existence of any invariable rule to grant the Beach to the riparian owner nothing could be more^untn.e. or more destitute of any foundation. Having had the honor to hold the ohice of Solicitor General, and afterwards of Attorney General, fora period of 17 years, I am enabled to assure you. Sir, that such was not the fact ; grants of Beach Lots adjoining L riparian and ot t e IVuns o the Hotel Du.,, River St. Charles, were made to Messrs. John AnZ::. John Bell, Jacob Io..er, James M'Callum. against one of whom (Anderson) those Nuns had brought an action ot ejectment, founded on their supposed right, which they afterwards hope- lessly abandoned ; and other Beach Lots in the Port of Que!:ec, adjoining the land of the Se.iinarv were granted to Messrs Bell and Sheppard. Beside, it appears from the highest au,hor,.v ;; the subject, thato. the Hon F. W. Primrose, Inspector General of the Queen's Domain. Appen- dix, No. «). that the invariable rule had been, to grant the Beach to the persons who had im- proved and reclaimed it. That, with respect to the position that the Nuns were on the same footing as other snbjeet, as to preterence ,n this matter, I beg to be permitted to ..-,y t\vn ,he truth of it is verv questionable • and even it such e.,ual.>y existed, it might be appiic.l.le to those pans of the navigable waters', where agricultural operati.,ns were carried on down to their margin, but ..t to I, Beach in such a port as that o, Quebec ; and par.iculariy as .ho Riparian property of the Nuns was a cliff of 300 lee ol al itude, rendering ail access to the waters of the St. Lawrence impracticable moreover. I would respectfully contend that it was the duty of the Crown to grant sueli property to persons in secular hie, ^^|.o would render it useful for the purposes of commerce and naviga- tion and not toaboily in Mortmain, composed of members, supposed in their seclusion from civil lite, to be dead to all worldly nnd speculative {.iirsiiits. . '[''•'^' °" "><= .'?7""'' "■■«-* i» ll>" R^'P-^ that the sale to Mr. Laporte was incomplete, enough 1 thmk has been said on his part to shew, that, i.Kl.pend.ntly of the prel-.-rence due t„ him a ■■ '.uvine improved and reclaimed the .soil, all the elements n .pii.vd to form a valid Contract of S-de were there, lirs prrlnnn et commsus. And that, even looking at the onlers in Council of Ib'h" aad Lord Stanl.y's dispat.di. an.l the proceedings ..f the Government, ns onlv « pnmis. of sale I venture to ass.rt that no Lawyer c-nversant with the laws of Lower (.'anada would In/'.rd his' reputation by asserting that th.>se laws do not regard a promise of sale, followed bv traditiun and the possession 8,h September. 18,.1. there remains hut one gr ,d upon which I mus, beg leave lur.her to trouble you. I, .. upon the pi..„ proposed bv that Re.^.t of ex,K.s.„g the property to public sale; this to my mind would not only be ,,h,,;,| ..„, „ „,, „, depriving Air. Laporte o, his venu-d pn-fep., „„, title, but would be futde .md onenm! ,o the Oovernmci,. who wouh, necess.vily bli.ed to mde,mi„y Mr. Laporte for his impiovements'. and could not. without opp,,.ssio,.. uitl Id „■ b„n the price ,o be obtained, wliieh would re present the property substantially, if pot ton„:,|lv by Letters Patent grante.l to him . ' *7' """. " '-^ '"" •■" " '""''y '-"• ""• ""■•'•-' "( Mr, La,«irte. that I .ho«|d i„d„i^ i„ ems ol Hoven.y on the con. t .,f the Nun.. throM.liout the whole ,ransaeti..n ; but I .,uSn-^. fra.n from Matmg that this cond.ict exhibits gross .nalufi.lrs. They disputed, and still .mpugn ,he title- of the Crown, while they seek, I'rom H. M. Government, a grnnt of the property,— by which they would enrich thfemselves, out of Mr. Laporte's improvements, made at his sole ex- pense, on the property of the Crown, and defeat his claim, preferable not only according to the invariable practice prevalent as to grants of such property, but in laW and equity, and under every imairinable view of the case. Conscious of the infirmities of their pretotided title to the Beach, the Nuns having sold to the Messrs. Frasor, Uth June, 1832. between the date of the Judgment in the Court of King's Bench and the Judgment of the Court of Appeals, the Bdach-Lot in question, caused the Messrs. Erasers to execute a deed of the same dati — and which I am informed is now before you--whereby they were absolved from any obligation of garantw, and the Messrs. Frdwrs bound themselves to prosecute the appeal in the name of the NunS, but free of expense to thiim. That these Contracts, on the part of t!ie Nuns, constituted a sale of a disputed Title, droits litigieux, which was severely reprobated, by the Civil Law of Lower Canada, and penally con- demned by the Statute, of 32 Henry VIII, ch. 9. That this piece of conduct, if not of moral tur])itude of the Nuns, was the consummation of their bad faith ; and they forfeited all pretensions to the consideration or favour of the Queen's CJovemment. On the second point. I beg leave to argue on behalf of Mr. Laporte, that the perverse adher ence ofthe Nuns to their supposed title to the Beach, notwithstanding the judicial decisions to the contrary, had its source in a total inisai)prehension of the terms rive, rivages, ripa, errone- ously and inexcusably applied to signify the Beach or space between high and low water-mark ; whereas, the nwe or r»/>a forms no part ofthe Beavh (for which word the French language did not ftfford any precisely corresponding term) but is the bank {Ixird) ofthe vwit. According to the French Law, from time immemorial, the right of the Crown, founded on the Roman Law, to Rivers, Ports and Highways, had always been recognized ; so much so that, by the provisions of the Ordinance of IflCO — and ofthe Edict of 168a (not in force in Lower Ca- nada), such property was dec! red inalienal)le ; but all the grants ofthe Crown, of such property, made, according to the property as it had existed, previous to the Ordinance de Moulins 1560^ were ratified. So that tiic condition of the law of Lower Canada, or Canada East, is that of France before and at the time ofthe Ordinance ISIIO. The property of the Crown in Rivers extended over the alveus, the whole bed between the banks, ripm. " THbut flumina constant, alveo ripis aqua" The ripa, rive, is the bank and margin ofthe river, down to high-water mark. Ripa em ipur pleni.isimum Jlumen conlinet ; and it undoubtedly belongs to the proprietor ofthe adjoining soil, subject t(» a servitude or easement in favour of Her Majesty's subjects, for the purposes of navigation and land carriage. " Riparum quoque usus pui)licBi time immemorial along the hanks of rivers in Franco (see Ordinance Charles VI. in 1-115), and it was a piMic hiirhnmj, vested like all other highways and rivers, in the Crown. It formed a space or band of |>ublic pnqicrty, between the soil ofthe adjohiing owner. and high water mark, all below which belonged to the Crown. That, u|K)n the same principle, the right, ofthe Crown to the s()ncc of 84 feet above the high- est tides, has been asserted and recognised in Canada, as necessary for the purposes of naviga- tion and communication by land carriage— (Ordinances, 13 May, lfl«6,)— and the erection of any fence within that space, by the adjoining proprietor, has been declared a nuisance, abateablo by any subject of the Crown. InreiH-ndently of the decisions in the Provincial Courts in the contest botwnen the Crown and the Nuns as to the Bench, and of a recent judgment of the Queen's Bench at Quebec, in a caic between other parties. Sir James Stunrt, baronet, presiding, rendered in June, 1H45, (soo aperty, — by his sole ex- ding to the under every the Beach, e Judgment in question, •med is now the Messrs. 2 of expense ritle, droits )enally con- immation of the Queen's rerse adher decisions to •ipa, crrone- yater-mark ; inguage did nded on the jch so that, 1 Lower Ca- ch property, oulins 1560 t, is that of between the largin of the undoubtedly ivour of Her naves ad eas libcrum est, diis hfureiit ; ten— Lib. II. leir very na- 1 which taey high water mcc Charles rivers, in the lining owner. avc the high- 38 of naviga- Bction of any abatcablo by n the Crown L^uubec, in a ;. 1845, (wo Appendix, No. X.), fully establishing the iiiduhilablf light of the Crown to property of that par- ticular description ; it will be found tfiat the Provincial Legislature of Lower Canada, by Statute of 1 Will. IV. c. 38, a temporary act made permanent by 6 Will. IV., c. 55, exercised the ownership of the public in the Beach or strand of the Saint Lawrence between high and low water mark. It is also right to notice, that the assertion by the Nuns, that the Cove, where 'the Beach in question is situated, was always known as FAncc des Mires is untrue, for the name had always until these Religious Ladies Les Dames (meres) Religieuses, chose to alter it for the pur- poses of this present controversy, been written FAnce des Mers, or the Cove of the Tides. Having now fully, and I flutter myself satisfactorily shewn that the legal and equitable right of Mr. Laporte, to claim at the hands of Her Majesty's Government, the confirmation of the sale made to him, by the issuing of letters patent for the Lot in question, and having as clearly de- monstrrted the utter worthlessness and total absence of foundation of that of the Nuns or of the Messrs. Fraser, I shall proceed to notice a point patent, as I am informed, upon the face of the proceedings transmitted by the Governor General of Canada, which presents, as I am also in- formed, an insuperable barrier to the exercise by Her Majesty of Her prerogative to confirm the sale in question, whith is said to be contained in an Act recently passed in Canada, entitled "An " Act for the disposal of public lands." It is very much to be regretted, and may hereafter be the source of bitter remorse to gentle- men desirous of doing justice; that this point which appears to have originated in the Council, and that, at the outset of their supposed judicial career that, they should not have thought it fit and projier in accordance with the dnijy practice, which obtains, not only in the Courts of Her Ma- jesty in England, but in the common Law Courts of Lower Canada, where the contending parties have overlooked a point, which the Court considers material, to have called ujxin the Counsel to speak to it, in order to assist the Court in coming to a proper decision on the point ; such a course would not only have been conformable to universal practice, but would have been in perfect ac- cordance with the maxim of British justice, never to condemn or deprive a party of his rights un- til he shall have been heard, I regret this the more, as I am persuaded that the learned Counsel who represented Mr. Laporte, and who was so })erfectly competent from his legal attainments and knowledge of the laws of Canada, would have had no difficulty in convincing the most scrupulous of that judicial body, ha4 ho boen heard on the |>oint, that the Act in question conferred no juris- diction on the Governor and Council, to the exclusion of the Sovereign, in respect to land of the particular description here contended for. As it is, I feel myself called upon to do so. The first objobtion which I beg leave to offer to this enactment is, that it was not passed ac- cording to law, to wit in conformity with the provisions of the Act 3 and 4, Victoria c. 35, inti- tuled, " An Act to re-unite the Provinces of Upper and Lower Canada, and for the Government of Canada," and consequently confers no power whatever on the Governor and Council of Canada nor can it as a necessary consequence deprive Her Majesty of any power or authority which she pttssessod prior to its supiwsed enactment, that in ix.int of fac, the Act in question is a nullity. Ill the first place I beg lo call your utiention to the fact that on the l«th September 1841, the Governor of the Province being at the point of death, and consequently unable to close the session of Parliament in person, caused a commission to be issued under the Great Seal of the Province, by which ho nominated an Bills so jiasscd by the two Houses, the Clerk of Parliament in respect to the Bill under consideration, declared that His Excellency reserved the said Bill for the signifi- cation of Her Majesty's pleasure thereon. And secondly to the jiroviso contained in the 40th •oction, which is us follows : " That nothing herein contuined shiill be construed to limit or ro- " itrain the exercise of Her Majesty's prorogntivu in authorising, and that notwithstanding this Act, "and any other Act or Acts passed in the Parliamhnt of Great Britain, or in the Parliament of the " United Kingdom of Great Britain and Ireland, or of the Legislature of the Province of Quebec, or " of the Province uf Upper or Lower Canada respectively, it »hall be lawful for Her Majesty t« » authorise the Lieutenant Governor of the Province of Canada to exercise and execute withm such « parts of the said Province as Her Majesty shall think fit. notwithstanding the presence of the Governor " within the Province, such of the powers Junclions and authorities, as well judical as other, which » before andatthe time of passing this Act, were and are vested in the Governor, Lieutenant Governor, .. or person administering the Government of the Provinces of Upper Canada and Lower Canada " respectively, or of either of them, and which from and after the said re-union of the said two Pro- " vinces shaU became vested in the Governor of the Province of Canada, and to authorize the "Governor of Canada to assign, depute, substitute and appoint any person or persons jointly or « severally to be his Deputy or Deputies, within any part or parts of the Province of Canada, and " in that capacity to exercse, perform and execute during the pleasure of the said Governor such " of the powers,'functions and authorities, as v/eW judicial as other, as before and at the time of the " passing of this Act were and are vested in the Governor, Lieutenant Governor, or person admin- "iterin^ the Government of the Provinces of Upper and Lower Canada respectively, auA which. " trom and after the union "of the said Provinces, shall become vested in the Governor of the Pro- •* vince of (Canada." u u . It.s not necessa.y, T consider, to enquire into the nature of the authority given by Her Majesty to Lord Sydenham, the Governor of tl.e Province of Canada, or whether any authority was given to him in this particular, beyond that contained in the Commission appo.ming h.m to be Governor General of Canada, because upon a caivful perusal of the said proviso, it will be found that the authority of Her Majesty to be exercised under the reservation therein contained, could only extend to authorise the Governor of the Province of Canada to assign, depute, sub- stitute and appoint, a person to be h. i Deputy within any part or parts of tne Province ot Canada, and in that capactv exercise, perform, and execute, such of the pow.M-s. functions and authorities. a, well judicial as .'.ther as before and at the time of the;,a..»^- of the Act, were vested m the Governor and Lieutenant Governor of Upper and Lower Canada, respectively, and which, after the union of the said Provinces, should become vested in the Governor of the Province of Canada. A reference to the 44th section shews cleiriy the extent and nature of the powers to be delegated -"That b.\\ judicial and ministerial authority wliich, before and at the time ot the " passing of the Act. were vested in and might be exercised by tlw liovernor. Lieutenant Gover- .. nor &c of the said Province of Upper Canada, or the members or any number ot members of " theExecutive Council of the same Province, or was vested in or might be exercised by the " Governor, Lieutenant Governor, &c. &c. of the Province of Lower Canada, should be vested m - and might be exercised bv the Governor, 6^c. &c. of the Provin.M> of Canada, and m the mem- " bers or the like number of members of the Executive Council of Canada respectively. And - it was in respect of such judicial and ministerial authorities as were in force in the two -Provinces respectively; that the Parliament mtended should be del.-gated under the authority " of Her Mwsty, by the Governor of Canada, to a Deputy or Deputies, and not as regarded any « of the new powers, functio., or authorities created or conferred upon him by the Act 3 and 4 " Vict c 33. It" therefore folh.ws as a necessary consequence that the Bill in question," being subject, like alt other Bills, passed bv the Legislative Council and Assembly to render them capable of be- coming Laws on rec-iving the Royal Assent, whether given through the medium ot the Cover- nor by the Queen herself I., presentation to the Gov.Tnor with all the solemn.t.es required by the' Act of Union, and that having been prese.ued for the Royal pleasure to Mi.jor General Clitherow not being at the time, constitutionally or legally invested with legislative nntlu.nty, althouKh presented preciselv an.l in strict cnlmnnly with the usnge which obtained m the pro- vince of Upper an.l Lower' Cannda, when legislating separately under the powers and authority conferred by the Act 31. Geo. 3. c. 31. which are i.lcntical with those contained in the Act of Union, became and is null and void. ,,.„., , • . If this interpretation -f the Act of Parliament be correct, the ditTu-ulty which ppears to have stood in the way of the Council in Cannda-the supposed legal existence ot th,- Provincial Act will happilv have been removed; and those gentlemen will be restored to a position which. untr anv chn.mstances, could not fail to be m-.t agreeable to their wishes and to their feelings a, it will'enabl.- them, to give immc.lialc etTect to the eom.nands of the Hovcreign, as cmveyed by Lord Stanlev. and hereafter to congratulate themselves, as b ring the n^edium through whom. ' * « * Sn Appoii'lii. V ■ '' Majesty to jvithin such 3 Governor ther, which t Governor, It Canada d two Pro- thorize the s jointly or -unada, and ornor such time of the son admin- and which, of the Pro- 3n by Her y authority ing him to it will be I contained, leputc, sub- ot' Canada, authorities, isted in the which, after of Canada, iwers to be time of the mint Cover- members of ised by the )o vested in in the nipm- vcly. And in the two he authority i'gardcd any Act 3 and 4 subject, like pnble of be- ih(! Gover- ri'tiuired by [ijor General le authority, 1 in the pro- nd authority n the Act of h ppears to lie Provincial isition which, heir feelings, QS conveyed rough whom, ' f justice although injuriously delayed, was at length done to Mr. Laporte, and the good faith and the honour of the Govemmeat maintained. But secondly, supposing the Act to have been passed in due form of law, my next objection is, thit the Legislature did not contemplate or intend that its provisions should apply to lands of the particular description now contended for, and that they do not so apply. Having been a member of the Council where the measure originated, and of the Assembly wherein it was passed, and having a personal knowledge that the Bill was framed by Mr. Sullivan then President of the Executive Council, this gentleman having previously been Commissioner for managing the Crown Lands in Upper Canada, a Province situate about 200 miles above the highest tidal waters, I can safely assert, that so far as the intention of the Legislature was con- cerned they never contemplated any exclusive control over land of this particular description, nor in any wise to affect it,— that, on the contraiy, their object was to extend the provisions (with some necessary alterations) of the Act passed in the province of Upper Canada in the first year of Her Majesty's Reign, bearing the same title, to wit, an Act to provide for the disposal of the public lands in this Province, — to make it applicable to all parts of the Province which had become necessary by reason of the reunion of the two Provinces. After a careful perusal of this Act, it will be manifest that there is nothing in it to prevent Her Majesty from authorizing the Governor General of Canada to confirm the sale made to La- porte as already directe^by Lord Stanley, and to issue letters patent under the Great Seal of the Province for that purpose, notwithstanding any decision to the contrary which has been made by the Governor and Council under that Act. It has already been decided, that the preferable claim to the Lot in iiuestion, was in Mr. La- porte, and that, by the local and imperial authorities, that the sale has been made to him, and the money paid before. As far, therefore, as the faith of the Crown could be pledged, without matter of record the case has been decided, the bargain made, and the contract closed before the Act came into operation. In vain will be sought a clause in this Act, providing, or even indicating an intention to pro- vide, that a case already determined should be subject to reconsideration and reversal by the Court of the Governor and Council, as constituted under that Act. I apprehend the prerogative of the Crown could not be so limited without express words or necessary imj)lication. Some of the provisions of the Act. it is I rue. have n retrospective effect, but the clause under which the Nuns seem to have applied as Riparian proprietors, clearly relates to sales made under the au- thority of that Act. But this sale was made belbre the Act ; and I repent that there is nothing in it to shew that such sales were to be set aside, or that grants in pursuance of such previous sales were prol.ibited ; there is indeed a clause that all claims for land heretofine allowed shall be com- muted for land scrip ; but that beyond the shadow of doubt, relates only to general claims for land of indefinite locality, not to that specific claim for a particular lot arising out of a sale, which word also is used in the very same clause as something very different from claim. There are in the Act express provisions made for sales and rights accruing under (hem, but it is impossible not to perceive that those provisions are clearly to be confined to sales under the Act. But, even supposing those provisions could be extended to previous sales, Mr. Lr.ix)rte would thereby be en- titled to his grant, a", having paid his purchase money. If, on the other hand, those provisions do not extend to previous sales, the inference from those provisions also is the same as from every other clause in the Acl, viz. that the jurisdiction of the Governor and Council established by that Act