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Les diagrammes sulvants lllustrent la mithode. ly errata ed to mt me pelure, agon d 1 2 3 32X i t. 2 3 4 5 6 STATE OF THE PRESENT FORM OF GOVERNMENT OF THE PROVINCE OF QUEBEC. WITH A LARGE APPENDIX; COKTAIMNG EXTRACTS FROM THE MINUTES OF AN INVES- TIGATION INTO THE PAST ADMINISTRATION OF JUSTICE IN THAT PROVINCE. INSTITUTED BY ORDER OP LORD DORCHESTER, IN 1787, AND FROM OTHER ORIGINAL PAPERS. MISERA EST SRRVITUS UBI JUS EST, VAGUM AUT IKCOGNITUM. LONDON: PRINTED IN THE YEAR I/pO. * r / ' r r' ■\ > ' 6 i >V} » :/:.i * ♦, t. i^\ \ T f » 1 ^"I i ^ •\ ^ma t i An STATE, &c. X.: >• T r^ OVERNMENT was inftitutcd for the good of the fubjedti to fecure the peace, the happinefs and the profperity of the fociety ; and all Governments are fo far deipotic> as they are perverted from thefe principles. Unfortunately for mankind, ia looking over the map of the world, we fee few countries or ftates^ where thefe objedts are properly attended to ; or, where the people enjoy that political rank and liberty which nature deiigned for them. - ■ The Britifh nation ftands peculiarly dif- tinguiOied in this refped : bleffed with a conflitution founded on clear and generous » B priaciples. ( 2 ) {Principles, where the executive and legifla- tive powers arc fo wonderfully organized y as to have fecured to the fubjedt all the advantages which How from focial liberty. To antiquity, fuch a fyflem was an obje(ft of mere fpeculation ; but its excellence is now the pride of England, and the admi- ration of the world : its principles are drawn £rom the purefl and plainefl reafon, and di« re^ed to the mofl: important ends of hu- manity and government; the reftraints which it impofes on the individual, operate as his prote(5tion } equal laws fecure to him equal rights i and he lives the free citizen of a free ftate J his property fecured, and his liberty proteded, by the cpmmon intereft which the whole community has in their vindica^ tion, when threatened or invaded. One of the principal and fund^mentat maxifns of that conflitution 19^ tb^t the people are allowed to participate in the U- giflative authority : and although the repre- »' ::'.$< fentation ■^ ( i ) (cntation is not fo general^ as by fome may be deemed confident with the rights of the whole people, it will bo fufHcient for us to obferve> that it is to the Commons* Houfe of Parliament that thefe kingdoms are in-* debted for the freedom of the government, and the liberty of the fubjedt. Reprcfentation therefore has ever been confidered as the inherent right of every Britifh fubjedb; they enjoy it in Britain; and in fettling diflant colonies, or conquered provinces, the Britifh government has con- Aantly acknowledged the maxim, by allow- ing the people a reprefentative body in tho legiflature of each colony or province re- fpedively. One province only has beeri reftrained from the exercife of this privilege —the province of Quebec— though we truft that nothing can be alledged with regard to its iituation, or to the condudt of its in-^ habitants, which will juftify its being fo B 2 pecu- I t I i ■ i I I * ( 4 ) pccularly marked, as if unworthy to enjoy the privileges of Britifli fubjedls. There is not any thing of fo much im- portance to the inabitants of a country, as the nature of their government : nor is there any political queftion, which involves in its difcuflion confequences more exten* five, or more ferioufly interefting, than that which refpeds the claims to a free confli- tution, of a people labouring under the op- preffion of an arbitrary government. No objedts therefore can be more ftrongly en- titled to the ferious attention and difcuflion of the British legiflature, than the com' plaints from the province of Quebec ; more particularly as thefe complaints have pro- ceeded from the opprefUve operation of its own folemn a£b, which excluded that branch of the Britifh empire from the exercife and enjoyment of privileges^ confirmed and pro- teded by the conftitution of England. * V *. w Confident 1 i I I i is) Confident therefore that Parliament will fully inveftigate a matter of fo great im- portance to the honour and interefl of the nation, we will enter on the fubje(ft of the prefent government of the province of Que- bec, with that refped which is due to thofe we addrefs ; and with that firmnefs which the grievances complained of cannot but excite and juftify. The province of Quebec was annexed to the Britilh empire by the treaty of Paris in the year 1763, when the inhabitants there- of became fubjedt to the duty of allegi- ance, and entitled to prote(flion, and to a participation of all privileges as Britifh fub- jedls. His Majefty's gracious intentions for the fecurity, happinefs, and profperity of the inhabitants of that newly-acquired province, were fully fet forth in his royal proclama- tion, bearing date the 7th of Oa:ober 1763, in the follQwing words : B 3 "We 1 ! ( « ) *' Wc have, &c. given cxprcft power and ' diredion to Our faid Governors of Our ' {nd Colonics rcfpedtively, that fo foon as ' the flate and circumilances of tlie laid ' Colonics will admit thereof, they (lidll, ' with the advice and confcnt of the mcm- ' bers of Our Council, fummon and call ' General Afiemblies within the faid ijo- * vernments refpcdlivcly, in fuch manner ' and form, &c.f " Thefe gracious intentions of eftablifhing SL free and liberal government in that pro- vince, were further confirmed by his Ma- jedy's commiflion of Civil Governor to Ge- neral Murray, dated 2ift of November 1763, which recites, " And We do hereby give and grant unto you the faid James Murray, full power and authority, &;c. fo foon a6 the *' fituation and circumftances of Our faid «< if t See xAppendix, No. I. ti province, { 7 ) «' province, &c. to fummon and call Gc- ** neral Affcmblics of the Freeholders and ** Planters within your faid government, " &c.*" From thefe public and authentic inftru- meuts, his Majefty's fubjedts then refiding in that province flattered themfeltes, that a free British conftitution would foon be efta* blifhed; and they eagerly looked forward to that period, when the troubles neceflarily attendant on the military flate, in which that touhtty had fo long been held, would ceafe; and the neceffary arrangements be made for convening the reprefentatives of the people, Thefe e^tpedations acquired new vigor from the proceedings of the Governor and Council in their firfl feffion, when they efta- blifhed and condituted the courts of juflice for the province, by the ordinances of the * See Appendix, No. Hi B4 17th i H I ,' I il' :;ii ( 8 ) 17th of September and 6th of November J764, entirely after the Englifli form, and direded the judges to decide all caufes brought before them, according to the laws of England*. The people were happy to fee that the Governor and Council, in compliance with his Majefty's gracious intentions, had laid the foundation of a Britifh conflitution for the province, in the courts of juftice; and as his Maj efly had not delegated by any public inftrument, any legiflative autho- rity to be exercifed by the Governor and Council alone, they expedled that an af- fembly of the reprefentatives of the peo^ pie would foon be called, to reconcile, in a legal manner, the new conftitution, with the antient laws and cuftoms of the coun- try. Numbers of his Majcfty's natural born fubjeds, in the mean time^, in confer » See Appendix, No. IIL quencc ( 9 ) quence of thofe public and authentic indru* ments, were induced, from a fpirit of en- terprife, and in purfuit of commercial ad- vantages, to refort to, and fettle in, that country; fully perfuaded that in fo doing, they relinquiflied none of thofe privileges they had ever enjoyed under his Majefty's government : but to the aftonifliment of the whole province, the Governor and Council afterwards aflumed and exercifed the whole powers of legiflating; and pafTcd and iiTued adls and ordinances, contrary to his Ma- jefty's exprefs orders in his commiflion to the Governor. This occafioned a general alarm among the people; and the old or natural born fubjedts, imprefled with the idea of the confufion in which the affairs of the province would be involved, by the operation of laws thus illegally, as they conceived, ordained, did, in the autumn of the year 1765, petition his Majefty, that he would be gracioufly pleafed to relieve them from ( t5 ) i I / from fuch a difagfeeable iituatlon, and order the Governor to call an affembly of the re- prefentatives of the people, that they might have the fatisfadlion of regulating their af- fairs by, and obeying, lav\^8 legally enadled and made. As no relief was granted ih confequ^nce of that petition, and as the diflrefs and confufion of the affairs of the province daily cncrcafed, they, in the year 1770, addrefied petitions to his Majefly, and to both HbUfes of Parliament, for the fame objcifls : And again, by their petitions in tht yeif 1773, they reiterated their complaints, and prayers for relief to his Majefty, and to both Houfes of Parliament. Such was the regular progrefs of com* plaint from that province 5 and the people certainly had every reafon to expect that the prayers of their petitions would be granted, —Canada had then been in full poffeflion of his Majefty, and under a civil government, ten ( " ) ten years— a period certainly fully fufficient to have aflimilated the Canadian new fubjedts to Britifli manners and cuftoms ; to havt promoted their acquiring a knowledge of our language ; to have reconciled them to fuch parts of the laws of England, as were abfolutely neceflary to be eftabli(hcd, as relatively connected with and dependent on Great Britain j and to have prepared them for a full participation of the rights and pri- vileges of Britifh fubjeds, by a free reprc- fentation of the people. What progrefs had be^n made in thefe neceffary objects, how far the officers of government had fuc- Cecded in convincing the new-acquired fub- jedls of the fuperior advantages, fecurity and dignity of Britifli fubjedls over thofe of every other nation or kingdom in the world; or whether the neceflary pains had been taken to efFed thefe defirable purpofes, we will not prefumc to fay : the Britifh legifla- ture, however, judged it expedient, in the year 1^ ! II ( 12 ) year 1774, to pafs an aft, commonly known by the name of the Quebec A in hopes that the ad: might be reconfidered before it began to operate, they, in the autumn of the fame year» 1 774, addreffed their petitions to his Ma* jefty and to both Houfes of Parliament, praying that it might be repealed ; no re-*- form having taken place in confequence of thefe petitions, they, in April 1778, pre* fen ted a petition to Lord George Germaine, then Secretary of State for the American department, to the fame purpofe: Again in I ( li ) in 1783, they forwarded petitions to his Ma- jeAy and to both Houfes of Parliament, praying for the repeal of that ad : And, in 1784, the confufion being then more gene- rally felt, the old and new fubje^ks united together in petitioning his Majefty and both Houfes of Parliament for the repeal of that a£l, and the eflabliihing of an eledive houfe of afTemWy for the Province. This lafl: pe- tition is now lying on the table of the Ho* nourable the Houfe of Commons; and it is expeded to come under their difcufHon this prcfent feffion. It is ligned by upwards of 2300 of the inhabitants of the province, in which number are all the old, and the moH refpedtable among the new fubjedls. From the foregoing (hort account of the trapfadions relating to the province of Quebec, fince it was ceded to Great Bri- tain, it will appear, that the conditutioa. introduced in 1764, as it was then under^ ftood, though founded on the Englifti laws, '^^ ' ^ produced ^i ( 16 ) produced great confufion^ particularly in alf affairs relating to landed property, or real cAates, (as the Englifh laws did not apply to the feudal tenures of the country,) and thereby occafioned much uneafinefs of mind among the people, becaufe they were not allowed to participate in the legiflature by their reprefentatives, whofe intered and duty it would have been to foften, recon- cile and ailimilate the laws of the con<« querors and conquered, fo as to produce harmony and fecurity. That the conftitu- tion, as fettled by the Quebec Adt in i774» befides depriving the people of that mofl effential privilege, impofed on the province a fyftem of laws very imperfedlly known ^ and that the people had conflantly and fteadily prayed for relief, and for a proper colonial government, fuch as his Majefty's fubjedts enjoyed in all the other colonies and provinces of the empire. 1 , J t . Whatever { *^ ) ' Whatever may have been the feafons Xvhich induced government, in the year 1774, when the Quebec Adt was pafled, to withhold the full participation of the privi^^ leges of Briti(h fubjedts ; as the Canadians are now generally convinced of the fuperior mildnefs, fecurity and advantages of a Briti(h conflitution 1 and his Majefly's an- tient fubjectSy in that province, are now, as a body, become refpe£):able, compared either in regard to their number, their wealth, the landed property they pofTefs, or their general influence, we prefume no fufficient reafons can now be given for continuing an arbitrary fyftem in that country. It has already prevailed too long for the in-> tereft of the Britifh empire j as we hope we (hall be able to fhew, that it has been the caufe of much oppreffion to the people ^ that it. has impeded cultivation and popu- lation; has greatly deprefTed the trade and commerce of that province -, and has, ki its ,.. C confequcnces. i , *,T V , Ml I I, I i I' ! KH ( i8 I confequcnces^ been very injurious to Great Britain. i .n • - r /no . ». : :^ . The Quebec Aift eftabliftied a Governor and Council as the legiflature of the pro« vxnce : this Council to coniift of not more than twenty*three» or lefs than feventeen members; a majority of the whole Council, when legally aflembled, might proceed to the bufinefs of legiflating. In confequence of this claufe, it has been determined by the Council, that nine members (being the ma- jority of feventeen, the fmallefl number li- mited by the adl of parliament) may legif- late; and of courfe, as every thing is carried in the Council by a majority of votes, the adls of five councillors may legally bind the vvhole province. The Governor is com- miflioned by his Majcfty, and the council- lors being recomniended by the Governor, are appointed by the King's mandamus. They may be fufpended by the Governor, 'fiuid removed at his Majefty's pleafure. Nb qualification a-' y:> ( I^ ) \l I M qualification is required of the members of that council, except refidence in the pro- tince; they may be men entirely uncon^ nedted with, and ignorant of, the various intereils of that extended province and its numerous dependencies. Such is the le- gillature eilablifhed by the Quebec Adt| and we will venture to aflTert i.hat no coun<* try or nation can prbduce a fyAeih whichi in its coilftitution, is more arbitrary or de- fpotic*. Had the Governor be^n folcly in- veiled with the legiflative, as he is with the executive, powers, as he would have beeti accountable to the King, to the nation, and, in fome meafure, to the inhabitants of the province, for the propriety and neceffity of his legiflative adts, thefe would have ferved as checks to reflrain him from any glaring * The political liberty of the fubjcfl is a tranquillity of mind arifing from the opinion each perfon has of his fafety. In order to have this liberty, it is neceflary the government fliould be Co conilituted, as that one maa need- not he afrsiid pf another. MoNT£sqyi£U* C a abufe i to ) abufe of thofe powers -, but under the {y{* tern of legidation eftablinied by the Quebec Ad, all idea of refponiibility is removed; it is the Council that legiilates ; and as the members of it are^ from its conditution, ab- folutely dependant for their feats at that board, and have each a penfion or falary as Councillor, a Governor may, through them, opprefs with impunity*. There is no in- ' . * . centive ♦ Lift of the prefent legiflative Council of the Pro- vince of Qj^iebec. £■ £■, Henry Hope - lOo And as Lieut. Gover- nor - 1,500 William Smith - 100 Chief Juftice - 1,200 Hugh Finlay - 100 Poft- Matter General 250 Thomas Dunn * 100 Judge of the Common Pleas - 500 tldward Harrifon - 100 John Collins - 100 Deputy Surveyor Ge- ' " neral - 100 Adam Mabanc - 100 Judge of the Common t ' . ' ■- ' "•: '' "■": Pleas - 50b J. G. C. Delery - 1 00 And Penfion - 200 George Pownall - 100 Secretary of the Pro- . */ M .'?' vincc - 400 *.*).. li . Picote ml kjt '* ■■■■* ( 21 ) ircntive to engage the members of that Council to feek after information, with a view to the good of the community : The welfare of the people, their cafe, their com^* fort or happinefs, mud be only fecondary confiderations under fuch a conditution : The public has no right to expert any great Picote de Belletre - loo John Frafer - loo Henry Caldwell - loo William Grant 100 Paul Roc St. Ours loo Fran9ois Baby r loo Jofeph de Longueuil loo Samuel Holland - loo George Davifon - loo SirJohnJohnfton,^6art. loo « Charles de Lanaudiere i oo ♦ .i U..J * wi!f -,r - dian affairs. Superintendant Gene^ ral of roads > 500 Surveyor of roads - 100 Colonel of militia. I degree ! • I' ii f I ( aa ) degree of patriotic exertions from a body conflitutionally fo dependant*. It cannot be expeded, that the members of that body, as few of them are concerned in commercial purfuits» (hould be fenfible of all the inconveniences which the pre* fent fyflem impofes on trade and indus- try ; or that they can, in any great degree, * George Allfopp,Efq. was fufpended in January 1783, for having entered a proteft, in March i 78c, againft Tome proceedings then had in the Council, as will appear by the following copy of the letter of fufpenfion, viz. SIR, Council Oficey gth Jan. I 'jd^. I am ordered \>y his Excellency the Governor to ac- quaint you, that his Excellency having r^fumed the conr iideration of the proteft made by you on the 6th of March 1780, and of the minutes of the Legi(Iativc Council fub- jfequent to it, has thought proper to fufpend you from your feat in the Legiilativc Council, until his Majefty'% pleafure be known. J have the honpiir to b«, ,; , ^ , .♦ . Vour moil obedient humbit fcryant, (Signed) J. WILLIAMS, Clerk of the Cpuncil. The Honourable George jiUfoppy EJ^, N. B. Mr. Allfopp was, fome tjme afccrwafds, re* mgycd from his feat at that board. . a.-j^, v, j 'j J ftel^ ( 23 1 feel, as their fellow fubjecls, thofe alarm- ing apprehenfions for the fecurity of their property, which uncertain or unknown laws muft ever occafion. The laws and ordi- nances that have been enaded by the legif^ live Council, are loudly complained of by the people^ as being obfcurely worded, and made without fufficicnt knowledge of the fubjedt ; and public objedts, as may natu- rally be expedted under fuch a fyflem of government, have been generally negledled. There is not a decent court houfe in the province ; the jails are fmall, inconvenient, and in a ruinous condition, very hurtful to the health of the prifoners, and a nuifance to the public*; and as the fherifFs are not accountable for efcapes, the public have no certain remedy in cafes of fraud. There has not even been a Proteftant church ered:* ed in the province. i lUl • Sec Appendix, No. IV. i- C4 Will i f ! K 24 ) Will any one fay, that the people are not juftified in complaining of a fyftem of go- vernment fo oppreflive and fo miferably de- fedtive, under which their deareft and moft facred rights are withheld ; and their pro- perty is the fport of laws which they can*- not comprehend ? Do thofe patriotic memf bers of the community defcrve to. be brand-^ cd with the invidious name of fadlious, who have come forward to lay before his moft gracious Majefty and Parliament, the abufcs and grievances that exift in a Britifh province. We know it muft have been the intention of our gracious Sovereign, and of Parliament, in paifing the Quebec Adl, to promote the happinefs and profperity of the inhabitants of that province : it is there- fore the duty of every good fubjeft to point o^t the caufes why thofe gracious in- tentions have not had t\xe defired efFedt ; and to propofe, for the coniideratlon of government, fuch meafur^s as may appear .:iV/ moft t ^5 ) inofi: likely to attain and fecure thefe de- sirable objcdls, j: ,. ,. c;j;-- The province of Quebec, from its im- xnenfe extent, and the manner in which it is fettled, would require an intelligent le- giflature, invefted with all the powers ne- ceflary to promote, encourage and fecure, the various kinds of induflry and com- merce that arife from the iiOieries, agricul- ture, and trade with the favages, for which that country, by its climate and internal na- vigation, is fo particularly well adapted by the bountiful hand of Nature*, That ex- tenfive country, when ceded to Great Bri- tain at the treaty of peace of 1763, con* tained no more than 69,000 Chriflian Xouls'f', though 160 years had then elapfed * From Cape St, Charles to the Grand Portage, follow- ing the courfe of the waters, is 2250 miles, and from the Grand Portage to the weft coaft of America 3000 miles. The fettled part of the country extends from Gafpe to Petroit, and is 1200 miles. 1 4cwunt t^ken by Governor Murray in 1765. from I i.: r, 1 1 !' i '. j ( 26 ) from the time the French firft began to fettle in it. But the French Government had other views that the encouragement of induftry or commercial purfuits. The rapid progrefs vtrhich the province has inade> during the (hort period it has been under the Britifh Government, in confe- quence of the fpirit of induftry and enter- prife which his Majefty's old fubjcdts who have reforted to and fettled therein, have raifed up and encouraged among the inha* bitants, will clearly demonftrateto the Bri- tifh nation, the growing importance of that province. From an account taken by Go- vernor Haldiniand, in 1784, we can with confidence afTert, that the population of that country confifts now of at leaft 150,000 Chriftian fouls ; of whom about 28,000 are of his Majefty*s ancient fubje..* ( 29 ) > Such is the province of Quebec, a branch of the Britilh empire j though left to ftrugglc with all the difficulties of an arbitrary fyf- tem of government, it has furprifingly in- creafed, iince it w^as ceded to Great Britain, in population and commercial refources ; but this, we affirm, has been entirely owing to the conilant hope the people have had of being allowed a free conflitution. And there is no doubt but, under a liberal {yf^ tern of government, that would remove the obftacles which the iron hand of arbitrary power has thrown in the way of improve- ment ; v/hich, by wife, permanent and wholefome laws, would renovate and give vigour to induflry, and afford fecurity to mercantile tranfadtions ; that the province would increafe in its refources and produce ; would, in a few years, furnifli employment for fome hundreds of Briti(h (hips in the car- rying trade; and raife up and fupport for the l\ ^1 r' "f^ i'l i| ! ( 30 ) the Britifli navy a great number of ftrotig healthy fcamen*. '- '^ '■''' ' •• ' ' « , The legiflative Council in' their firft fef- fion. In Spring I777> eftablifhcd the courts of jufticc for the province j viz. : ift. Avcourt of King's Bench, for the trial of criminal caufes only. In this court the Chief Juftice prefidcs alone. -r ■ : r> : ' 2d. A court of Common Pleas for each of the diflridis or counties of Quebec and Montreal. Three judges to prefide in each of thefe courts, and two nece^Tary to tranfa ; 4th. They conftituted thetnfelves, viz* *' the whole Legiflatiye Council/' to be a Court of Appeals; and that any five of them, with the Governor, Lieutenant Go- vernor, or Chief Juftice, ihould be compe* tent to proceed to trial and judgment of all caufes brought before them in appeal. From the above eftabli(hment it will ap- pear, that there is only one court of origi- nal jurifdidlon for the trial of civil caufes, viz. the court of Common Pleas. The judges who have prefided in thefe courts^ have feidom been men brought up to the ftudy of the law, or who could be fuppofed properly acquainted with the rules or prac-* ticcs of courts of law or equity*. We have already faid, that the " laws and cuftoms ** of Canada," as edablidied in the province i' i * Appendix, No. VI. !" r of i i} PI iir of Quebec, by the aA of the 14th year of his prefcnt Majefty, were very imperfedlly known at that time, either in Great Britain or Canada. They have bc^n generally un-* derflood, however, to confifl of, i : .i The Cuftom of the Prevote de Paris j . r ' Such of the French King's edids and or-* dinances as were regiflered in the fuperior council of the province; ::iii: :v ^ : ' :j - ^The Regulations and Ordinances of the Intendants;- ^ .^ ,. ;,'^ ?. - ^ . The Local Cuftoms of the country j ' And (though on what authority we da not know) the Roman Code, or Civil Law. t Under this definition, thefe laws will ap^ pe'kr Sufficiently exteiifive and complex, to require years of intenfe ftudy to under-^ ilrand them properly ; and the a<^s pafTed by the legiflative Council have greatly added to. that difficulty. This has occafioned great uncertainty in the decifions of the courts ; more particularly, as the judges, • < not ( 33 ) ;r- -4 not contented with fuch an extenfive field, have likewifc reforted to the Englifli law, and even to equity, as the rule to govern their judgments; fo that it has not been pofliblc for the fubjed to know by what law, or on what principles, his caule has been decided. The people have fteadily and loaldy complained of the numerous griev- ances introduced by the operation of the Quebec A6t ; and they have, at different times, 'flated the difficulties they laboured under in a very, forcible manner. 4 In a petition to Lord George Germaine, dated in April 1778, thefe grievances are ftrongly fct fprth*. v-i In- a petition to his Majefty, dated in September 1784, from the Canadian new fubjedts, the adts and ordinances of the legiilative council are complained of in ex- prefs terms ; and, what is more (ingular. ',•% . '* .■• A 1 ■•' 1. » i * See Appendix, No. VII. • D this I I • ( S4 ) this petition is figned by fome members of that legillativc body*. ■_•'.'' •; In petitions to his Majefty, and both Houfes of Parliament, dated in Sept. 1783, the old fubjedls dated the grievances they laboured under in a very pointed manner ; and in the petitions to his Majedy, and both Houfes of Parliament, dated the 24th of November 1784, now under the confidera« tion of the honourable the Houfe of Com* mons, thefe grievances are expofed in the ftrongefl language. They therein pray, that they may be relieved from the " anarchy ** and confufion which prevail in the laws *' and courts of juftice of the province, by " which their real property is rendered in- " fecure ; trade is clogged ; and that good *' faith, which ought to, and would, fubfift ** among the people, and which is the life ** and fnpport of commerce, is totally de- " llroyed.'' ■.«.* V- , r < * Sec Appendix, Ko. VIII. The ( 35 ) The Merchants of London, trading to the province, in a memorial they prefented to Lord Sidney, dated in January 1786, have likewife {Vated» in the moil pointed man- ner, the general confufiQa which prevails in that province*. . .r, f.,. \.u. 1 :i . Lord Dorchefter wa;S appointed Governor of that province in 1786, and arrived at Quebec late in the month of OAober of that year. His Lordibip had, no doubt, been informed of the di drafted Situation of the civil government of the province*!'; for ibon after his arrival, he aflembled the Legifla- tive Council, and having formed the mem- bers into different committees, he diredted them to enquire into the ftate of the laws^ the commerce, the police, &c. of the pro- vince ; and to report to him, each commit- tee refpedively, on the fubjedt referred to it. This was a very wife meafure, and fhew-^ ed that his Lordfhip was refolved to find * See Appendix. No. IX, f See Appendix, No. X. "**-• a P 2 out *" t! ( 36 ) III out the fourccs of the diffatisfadiiori which Co univerfally prevailed. The Committee, ap- pointed to report on the ftate of the com-« mcrce, applied by letter to the merchants of Quebec and Montreal, *' in order (as they ** ftate in their report to his Lordfliip) to *' obtain the thoughts of others more ex- ** perienccd than themfelves, on objedts of " fuch extenfive concern to the welfare of " the province." In confequence of this 4 application, the mercantile body of thefe two cities, having confulted together, and after mature deliberation niade out, each, a report on a variety of objedts relating to the ftate of the commerce, the laws and police of the country, they prefented them to the Committee of the Legiflative Council in January 17B7* The confuiion of the laws, and the great uncertainty of all legal proceedings, are pointedly and exprefsly ftated therein. Thefe reports were highly approved of by the Cooumttee of the Lc- • giflative ■1 M ( 37 ) giflative Council, and by them recommend- ed in the ftrongeft terms to Lord Dorchef- ter's mod ferious ccnfideration and reflec* tjon*. , In the fpring feflion of the Leglflative Council of that year, 1787, Mr, Chief Juf- tlce Smith brought into the Council , a bill to continue an ordinance that had been paffed in 1785, for two years only, efta- blifliing the trial by jury, in commercial affairs,^* between merchant and merchant, ** and trader and trader^ fo reputed and ** underftood according to law; and alfo, " of perfonal wrongs proper to be com- V penfated In damages;" and his Honor added to the bill certain claufes, which, he apprehended, would operate as a cure of fome of the diforders that had fo long pre- vailed in the courts. This bill, notwith- ftanding the trial by jury intended by it was fo extremely limited, unfortunately for * See Appendix, No, XI, »3 r the :!' It i^ \ Ill M, •i.i ( 38 ) the province, was rejedted by the Coun* cil. The members who had fupported it with a view of providing a remedy for fome of the many evils of the prefent fyflem^ finding their laudable intentions for the public good thus fruftratcd, thought it ex- pedient, for their own juftification, to enter their proteA againfl the rejedtion of the bill on the Journals of the Council. Their rea- sons of difTent, as flated in that proteft, ef-* fedtually fupport all the complaints of the people; and from the refpedtable fituations which thofe gentlemen who figned it, hold under Government, furnifh ftrong proofs of the neceflity of a reform*. The party who had oppofed, and ultimately rejedted tht Chief Juftice's bill, foon afterwards brought forward, in the Legiflative Council, another bill in its place* In this new bill, though the name of jury was retained, yet the ad- vantages which the fubjedi: derives from * Sec Appendix, No. XII, ^ • > .. that ( 39 ) that glorious in{litution» would have been totally deftroycd. The reports of the ten- dency of this new bill alarmed the mer- chants ; and in a meeting held for the pur- pofe of deliberating on what fteps were proper and neeeflary for them to take, oA an affair of fo much importance to their fe- curity, they determined to petition the Council, praying to be heard againft the bill, before it was paiTed into a law. They accordingly drew up a petition to that pur- pofe, and having prefented it on the 6th of Aprils the' Council appointed the 14th of that month for hearing the arguments On that day the counfel for the commerce appeared at the bar of the Legiflative Coun- cil ; and in a fpeech which laded fix hours» he pointed out in a very clear and fatis*' fadtory manner, the evil tendency of the bill then before the legiilature; he fhewed the neceffity of afcertaining what laws were eAabliflied for the province by the .J D 4 Qgcbec I' 1 , I ;i*i y •IS ( 40 ) Quebec Ad, that the fubjeeft calculated to promote the endsof public juftice, and to vindicate the honor of government, which are both fo eflfentially interefled in an enquiry into the charges and accufations, fo publicly brought before the Legiflativc Council, againft thepaft adminiftration of juftice, in the Courts of Common Pleas for the two diftrids,as well as againft the judges of the fame ; jind that of inconftftency in fome of the judgments of the Court of Appeals. Council Chamber f Jpril 2^^ lySy, (Signed) HENRY HOPE, Prefideflt. In i I!! i ill nil ( 42 ) In confequence of that addrefs, and tht papers which accompanied it, his Excel- lency, from that regard to public juftice whicht has always diftinguijhed his Lordjhip^ was pleafed) in a council of flate held in his prefence on the i8th of May 1/87, to order the chief juftice to inftitute a public invef-» ligation into the pail adminiflration of juf- tice in the province. We thought it neceflary to ftate particu- larly the various tranfadtionf which pre- ceded and gave birth to the order for an inveftigation, or enquiry, into the paft ad-^ miniftration of juflice in the province of Quebec ; as the evidence which was brought forward before the chief juftice on that oc- cafion, by a number of the moft refpedt- able men in that country, upon oath, many of them gentlemen high in rank, and hold^ ing places of great truft and confidence un-i* der Government, has expofed to public view fuch a fcene of anarchy and confufion in the iL. f! ( 43 ) the laws> and in the adminiftration of them by the courts, as no other Britifh province ever before laboured under. The minutes and proceedings of that inveiligation were tranf-* mitted by Lord Dorcheiler to the King's miniderSy in the autumn of the fame year» 1787 ; and we cannot doubt but thefe pa-^ pers, from their great importance, have been laid before the crown lawyers. They are too voluminous to admit of publication; we fhall, therefore, only take a curfory view of the various matter that is contained in that inveftigation, and notice a few of the many Ariking parts of the evidence therein ad- duced. But we flatter oarfelves, that thofe parts v^ill be fufficient to convince the Bri-» fifh nation, of the urgent neceflity of a re- form of the conflitution of that province ; of the great cruelty exercifed towards the inhabitants thereof, in having kept them fo long under fuch a defective fyflem of laws and government; and of the impolicy of fupporting ,.4- 5 !| i '1:1, fl Bit ill; 11 *M||I^ ( 4+ ) - Supporting arbitrary power in a province • now the largeft and moft populous belong-r ing to, and dependant on, the imperial crown of thefe kingdoms. ;:' The chief juftice, as commiflionef, opened ' the inveftigation in the beginning of June of the fame year, 1787, and three member^ of the legiflative council, who are likewif? judges in the court of appeals, were exa- ' mined; viz. the Hmourable William Grant, the Honourable Hugh Finlay, and the Ha-^ nourable George PomTial, Efquires. Their evidence Ihews particularly the confufion that has prevailed in the court of which they are members ; and the impoflibility of finding conliftency in a court compofed of fo many judges. They likewife fpeak to the iriconiiftency pf the courts of Common Pleas. They ilate, that Englifh judges follow EngliHi law ; French judges follow French law i and that fome of them follow flo particular 4^Wil3i;.Vdeci4e according to what ( 45 ) what appears to them to be the equity of the cafe*. This is a moft melancholy pic- ture of courts of juftice. Is it poffible for a people to be more ferioufly oppreflcdt than to be obliged to depend, for the fecu- rity of their property, on courts compofed of judges who differ fo materially on the principles which ought . to govern their judgments in deciding the caufes brought - before them ? The fuitor's fortune, nay, his political exiftence in the fociety, mufl depend on the chance of an accidental ma- jority of judges on the bench ; of thofe who decide by French law ; of thofe who decide by Englifh law; or of thofe who, negled- ing all law, decide by their own ideas of na- tural equity. The Quebec Adt is cxprefs in its diredlion, that all civil adtions fhall be decided by the laws and cuftoms of Ca? fVida ; yet the Court of Appeals decides by i ! i * Sec Appendix, No. XlV, ^'•'■n .> the m \,'\h li m irji B!i!l ( 46 ) thcEngliAi law. The judges of the Court of Appeals form» in their legiflatlve capa- city^ the whole legiflature of the province 1 they confider themfelves as bound in con-* fcience^ in their judicial capacity, to decide caufes brought before them according to the rules and maxims of the English law, with a view, as it is faid, to do fubAantial judice i though that law perhaps was not in the contemplation of either of the parties at the time of tbe tranfadtion; yet they do not> as legiflators, introduce that law into the conftitution of the country. They, at other times, decide on what appears to be the equity of the cafe ; though, as a court, they have no equitable jurlfdi^ion or powers. But, it is faid, the judges of the courts have not been profeffional men : however that may operate a^ an excufe for the judges, it is an objedfc of very ferious complaint. If the people had enjoyed their right ( 47 ) right of reprefentation, this grievance could not have long exifled. .-»,«•. ' Such is the fubftance of the evidence of thefe gentlemen. As they are high in rank, and men of the firft abilities in the pro- vince, their evidence fucniihos n^atterof fe- rious import for the coniideration of Go^ vernmenty and proves fufficiently that the complaints of the people are well founded. - From the exertions of thofe gentlemen in the legiflative council, as they appear fo fully f to fhew the inconfiftency of the judgments*.' Thefe gentlemen are among the firft cha^ raders at the bar in that province; it is their bufinefs and their duty to examine with great care and attention the cafes put into their hands i and from great ftudy, long pradice, and much experience, we muft fuppofe they underftand how the law ought to have been applied to the caufes they have conduced. Their evidence is conclufive, and fully afcer tains the confu- fioh that exifts in the laws, and the ^reat » / * Appendix, No. XV. ♦ . ■ . - r..''. uncertainty ( SI ) uncertainty and anarchy that prevail in the courts. ' 'In addition to the evidence of thefe judges and advocates 9 t&e whole mercantile body of the cities of Quebec and Montreal came forward and gave their teftimony before the commiflioner to the fame purpofe. They fpoke feelingly ; as mercantile tranf- adions, from their nature and variety, are fubjedt to much litigation, experience had unfortunately taught them, by the ruin of their fortunes and perplexity of their af- fairs, by the uncertainty introduced into their tranfadions, and by the uneafinefs of mind which they endured from the dread of litigation, the fatal confequences of ar- bitrary proceedings in courts of law. Many of the merchi^nts, on that occaiion, cited cafes in which they had been intereiled, in fupport of the evidence they then gave. They have all declared, that they could get no clear legal advice on their affairs. ( ' ft >u rf Ez and ■i i If ( 52 ) and that they had heard all the lawyers complain of the uncertainty of the laws and of the courts. Some of them had fuf- fered fo much from thefe caufes that they declare they are now afraid of being ob- liged to go into court, in any manner, either as plaintiffs or defendants *. 3 We have attempted, by this (hort iketch, to give the fubdance of the evidence laid before the chief juftice on that invefligation. Prom the number of perfons examined, the variety of objedls which thefe exami- nations comprehend, and the great num- ber of cafes cited in the evidence to fhew the wrong application of the law, or the contrariety of judgments in iimilar cafes, the minutes of the enquiry would fill feve- ral volumes. On that account, we have been obliged to confine ourfelves to the few extradls in the Appendix. His Majefty's .r ♦ See Appendix, No. XVI. miniflers It/ ( S3 ) minifters have long been in poflefllon of the whole proceedings and evidence, and we prefume they are now convinced, that the laws, as eftabliftied by the Quebec A6t for that province, are neither well iinder- ftood, nor properly adminiflered. A judg- ment of the Court of Appeals of the 2 1 ft of February 1788, (three months after the jnveftigation was clofed,) is a further con- firmation of the uncertainty of the laws in that count*^ as it ftates and proves, that (not a fingle law, but) a w&o/e code of the French law, called the Code Marchand^ has been fometimes admitted, and fometimes denied to be law, by all the courts in the province ; and the Court of Appeals has in that judgment declared, that it never was a part of, or belonging to, the law of that country *. ' Nowithftanding this folemn decifion of , 'iff'' the Superior Court, we are affured that * Sec Appendix, No. XVH. the •M I ?. if ; /Mil .11 ( 54 ) the Courts of Common Pleas ilill perfift in judging mercantile cafes by the Code Mar- chand* This encourages litigation, and occaiions numerous appeals; as the party that lofes in the Common Pleas, is fure to gain in the Superior Court*. " ' '-■ "' ^ So great is the uncertainty of law and j'iftice in that province, that his Majefty^s fubjeds inftead of being relieved or pro- tected by the courts, have been harafled and vexed by troublefome and unneceflary fuits; and, what is of infinite confequence to fociety, good faith in tranfadlions and the moral principles of the people, as the na- tural confequence of an uncertain adminif- tration of law, are greatly weakened •(•. * Of thirty e^ufes, carried by appeal before the council, from the Common Pleas, during the lad twelvemonths, we have been afTured that twenty-five of the judgments have been reversed . n* v,^r ^ ' t '< That laws, in a certain degree, can change the *' manners of a people, is not to be doubted ; becauie ** their manners alter with the increafe and circulation c< of property, on which laws have a ylAble influence." Dr, Marriot's Report. V The I S5 ) . The great uncertainty of law in the courts, holds out encouragement to undertake or defend any and every thing, in hopes that chance may incline the court to favour the caufe*. It is become extremely neceflary that Government fhould enterpofe and flop the progrefs of thefe alarming evils ; for a people once freed from the obligations of moral principles, will never be good or loyal fubjedls. , It is thofe principles alone that render fociety defirable or happy; there are no other ties among men ; and all wife flates * Among all civilized nations, it has been the conftant endeavour to remove every thing arbitrary or partial from the deciiion of property, and to fix the fentence of judges by fuch general views and confiderations as may be equal to every member of the fociety ; for, befldes, that nothing could be more dangerous than to accuftom the bench, even in the fmalleft inftance, to regard private friendfhip, or enmity, 'tis certain that men, when they imagine that there was no other reafon for the preference of their ad- verfary but perfonal favour, are apt to entertain the flrongeft jealoufy, and ill will againft the judges and magiftratest— Hume's Enquiry. E 4 and ( S6 ) |:| I and legiflatures have accordingly, with anxious care, watched over them and flrongly cheriflied and inculcated them. !. The province being in this unfortunate fituation, will any one prefume now to fay that the complaints the people have fent forth, are the offspring of fadlion ? Have not all their petitions been conceived in de- cent and refpedtful, though, from the ur- gency of their fituation, in nervous lan- guage; and copftantly pointing to one thing, •—a reform of the conftitution ? And have they not, by waiting under the preffure of fuch accumulated diilrefs for the conve- nicncy of Government to bring forward that reform, fliewn a degree of patience that befpeaks theni a dutiful and loyal people ? The fyftem of civil government, or conftitution, eftabli(hed by the Quebec Ad, ha^ had a fair trial of fourteen years; and the foregoing pages will (hew, that the affairs of the province are now in a much f . ' - more ipi ( S7 ) more confufed fituation than they were at the time that Ad was paffed. Dr. Mar- riot forefaw and predicted, in his report to his Majefty, in 1773, the confequences that would arife from hafly meafures in fettling the conftitution of that country *. ; r For the firft ten years after the Quebec A6t was paffed, the members who com- pofed the legiilative body confidered them- felves bound by their oath of office, not to difclofe or make public any matter brought before, or agitated in, the legiilature "f*. All hopes of wifdom in the adts or ordinances by them enaded, were by this ftrange opi- nion completely deftroyed ; for how could they make good and wholefome laws with- ;i' rt/..^J» ^^ * This latitude (alluding to his Majefty*s reference to the law officers being general) is the more neceflary, bc- caufejif hafty andilldigeded regulations fhould be adopted upon any miftaken notions of men and things, the evils already felt by your Majefty's Government will encreafe beyond the power of remedy. Dr. Marriot's Report. t See Appendix, No. VII. f !*:»■ I il ' ■ out '( xa8 )) out information? and how was it pofliblc for them to procure the neceffary and full information, if they dared not difclofe the objeds on which they wished to be informed ? ■ ^'^s^^'^'^y^ v •>'-: . Jiiv, \j'\;^v The Chamber of the Lcgillative Council of Quebec was as clofe and impervious as the Divan at Conflantlnople^. And though the members do not now coniider themfelves obliged to conceal what pafles in the Legif- laturej yet the public, as the door of the Council Chamber is Aill (hut againd them, caa only learn through the imperf edt me- dium of common rumour, what laws or ads are at any time agitated in the Legif- lature. '^'^^ • . - * Legiflative Council, February 14, 1780, Motion by Mr. Grant,—'* Whether a Member of Council, ad- *' ing in his legiflative capacity, may not take a copy of ** fuch papers, as are laid before the Board by his Ex- '* celiency the Governor, or any other perfon, in order ** deliberately, in his cabinet, to inftrudt his mind, and •* form his opinion of the matter committed to him." Voted, and refolved in the negative, . , 1,..^ From ( S9 ) From the eftabliftiniwOt of civil govern- ment until lad year, the province was di- vided into two great diftri(f)s, or counties, namely, the diftridt of Quebec, and the diftridt of Montreal. The fettlement of a great number of loyalifts at the extremities of the province, fmce the year 1784, ren- dered thefe diftridls too extended and un- wieldy. To remedy the inconvenience oc- calioned by the great diftance of fome of thefe new fettlcrs from the feats of juftice, and on purpofe to encourage thefe fettle- ments, his Excellency Lord Dorchefler, in confequence of an ordinance of the Legif- lative Council of the 30th of April 1787, authorifing him to that effedt, did, by pro- clamation, bearing date the 24th of July 1788, conftitute and erect, from and out of the two diftridls of Quebec and Montreal, fivQ new diftridls, viz. "' " ' ^*' ' '" ' The diftridt of Gafp6, in the Gulph of St. Laurence, taken off the diflridt of Quebec. The ( 6o ) . The diflrid of Luncnburgh, above Mon- treal, taken off the weft end of that diflrid. a The diftridt of Mecklenburgh, to the weft of Lunenburgh. v :.h;^ ^ s «• -- ^ The diftridt of Naflau, to the weft of Mecklenburgh. This diftrid: includes the fettlement oppofite Niagara. ,^. .^^ The diftria of Hefle, to the weft of Naf- fau. This diftrid: includes the fettlements about Detroit, and all the lands weft of Niagara to the Pacific Ocean ; ^ r i* And his Lordihip conftituted a Court of Common Pleas^ and named and appointed judges, juftices of the peace, and other ne- ceftary officers, for each of thefe new dif- tridls : but unfortunately for the people who inhabit them, neither they, nor the judges appointed to prefide in the courts of law, have any knowledge of the laws of the province. The laws of France v^hich, by the Quebec Adl, are declared to be the laws of the provinge, are all written and pub- ( 6i ) liflied in the language of that kjngdom; and the fcttlers in thefe new diflridts are totally unacquainted with that language. The natural confequence of this peculiar fituation is, that in thofe diftridts where the new appointed judges have opened and held courts, they have decided all the caufes brought before them, according to the prin- ciples of the Englifh law, in direct contra- didlion to the Quebec Adt, which ena(fls, that " in all matters of controverfy relative " to property, or civil rights, refort (hall be ** had to the laws and cuftoms of Canada, " for the decifion of the fame." ^'^^ - *> 'iiie judges who were appointed for the diftridts of Gafp6 and Hcfle, fenfible of their incapacity and inability to difpenfe juflice according to the laws and conftitution of the province, modeftly declined his Lord* {hip's commiffions. Thefe two diftrids therefore remain without any law. The mercantile tranfadtions, in thefe two dif- - trids. ( 62 ) W 1 1 I tri^s, e};ceed 3 50,000] . annually ; and there is not a court in either of them to compel a fraudulent debtor to do what is jufl. In ihort, the whole province is without any certain law; and is therefore in the very worfl ilate of civil fociety. ». -v--^ We have, in the preceding pages, at- tempted to delineate the principal features of the fyftems of government under which the province of Quebec has been held, un- fortunately for its inhabitants and for the empire at large, iince it was ceded to Great Britain in 1763; by which its population has been impeded 3 the progrefs of agricul« ture retarded j the valuable iiiheries on its coafls much negledted ; its general com- merce greatly opprefled j and the civil and political liberty of the people abfolutely de* ilroyed. -: -. l *:in;ihh.-^its \iiy 1 ^- ■ ■* ■ ' - ■;>■ ' t' It feems to be a general maxim in the po- litics of all nations, that the fame princi- ples of government ought to extend to, and ^■!>i-i pervade I ( 63 ) pervade all the dependencies of an empire |. and though it may be neceflary for the ge« neral good, to reflrain in certain cafes, the adtion of certain claiTes, or of certain dif<- tridts or provinces J yet that fuch reftridlions ought in no wife to injure, even with re- gard to fuch diftricft or province, the gv! • neral governing principles of the empire. ' The different provinces and colonies of France are all governed by the fame prra- ciples; by a Lieutenant General or Gover- nor, an Intendant and Parliament, (which, in the colonies, is called a cojifeil fuperiem) though almoft every province of France has different laws, cufloms and ufages. Every kingdom therefore being uniform in th^ principles of government through all Its dependencies, it will follow of ccur i'e, that the inhabitants of any diftric): or province from whom thefe general principles are withheld, will confider themfelves as more injured and oppreffed than their fellow fubjedtsj # I' ;/ I' i C 64 J jfubjedts; which wili tend to lefTcn that confidence in> and refpedt for, the govern- ing powers, which arc fo neceflary to give energy and vigor to government. ■ > fj- - >/ It has however been afferted, that diftant provinces ought not to have fo much general liberty as the parent ftate*; but this we fup- pofe, can only mean with regard to their commerce or manufactures ; for, if it is meant, that all foreign dependencies ought to be governed by arbitrary, or defpotic fyftems, we will venture to alTert, that from the na- ture of the Britifh Conftitution, fiich a fyf- tem cannot long exifl in any of her depen« dencies ; or produce any real advantage to the empire : becaufe it has neither been the pradice, nor policy of the Britifh government to keep large ftandingarmies in the provinces; it is therefore more neceffary, by a liberal * It is well known, that the inhabitants of the French colonies enjoy a much greater degree of liberty than their fcllow-fubjsds living in France. 'ikh':.^4j.' ^ ,"" ' confli* r ( 65 ) confutation and mild adminlflration, to fe- cure the afFedlions and confidence of the in- habitants^ and by that means interefl them in the fupport of government and defence of their province : for it is only the confi- fidence and zeal of the people that cai, give ftrength and energy to the government of a diftant province. But if the people con- fider themfelves deprived of privileges which they think they have a right to enjoy, that confidence muft be weakened. It certainly (hews a great want of genero- fity and equity in thofe, who, themfelves enjoying all the advantages which flow from a free conftitutlon, can, notwithflanding, propofe an arbitrary fyftem of government for their fellow fubjedls : but, perhaps, living in a free country, and protedled by equal and permanent laws, they are ignorant of the great opprcflion and in- juftice that prevail under arbitrary fyftems; they, perhaps, do not know, that few in- ftances of oppreflion, committed in a dif- F ' wt 'I ■i N r ( 66 ) ^ tant province, ever are, or can be brought forward to the public view in the govern- ing country, on account of the inability of the fufferers to bear the expence of follow- ing the GREAT DELINQUENT, and the little hopes they can entertain of fucceeding in their complaints againft him. When the fortune of war has annexed new countries to an empire, it becomes an objedt of great importance to the fafety and Arength of government to conciliate the minds and afFedions of the inhabitants, of fuch newly acquired or conquered provinces, to the change of their government and allegiance ; and this furely, under the Britifh empire, cannot be effeduated in a more certain or eafy manner, than by allowing them the full enjoyment of the privileges of Britifh fubjedts, and thereby making them fenfible of the great advantages they have gain- ed. We have feen in the condudt of the inhabitants of the Ifland of Minorca, the fatal confequences of not attending to this 3 vj maxim. ( 67 ) maxim. That ifland was fubjed to the Britifh government near eighty years ; but as no care appears to have been taken to change the language or manners of the people ; as they had not been allowed to participate in the privileges of Britifh fub- jedls, they never perceived ary peculiar ad- vantages they enjoyed as fubjedls of the Britifh empire ; and therefore in 1756 and 1780, when that ifland was invaded, icarce* any of them flood forth in defence of the Britifh government. Such are the wretched effedts of arbitrary government, that eighty years could not fecure the confidence of the people, and intereft them as fubjedls in the national honor, welfare and profperity ! Although the inhabitants of the province of Quebec have, from the general tendency of the Britifli government to a mild admi- niftration, enjoyed a certain degree of civil liberty 5 yet they have been, from the pecu- liar nature of the fyftem of their govern- F 2 ment. r^ ! -IM ( 68 ) ment, entirely deprived of all political li- berty *. A more full enjoyment of thefe efTential privileges has been the conflant prayer of all their petitions; and particu- larly of thofe now before the Houfe of Commons. The objedts prayed for in their petitions, may be reduced to the following heads : * In countries where every member of the fociety en- joys an equal power of arriving at the fupreme offices, and confcquently of directing the ftrength and fentiments of the whole community, there is a ftate of the moft perfect political liberty. On the other hand, in countries where a man is, by his birth or fortune, excluded from thefe of- fices, or from a power of voting for proper perfons to fill them, that man, whatever be the form of the government, or whatever the civil liberty, or power over his own actions he may have, has no fhare in the government, and there- fore has no political liberty.— Prieftly on Government. And again, If all the political power of this country was lodged in the hands of one perfon, and the government thereby changed into an abfolute government, the peo- ple would find no difference, provided the fame laws and the fame adminiitration, which now fubfid, were con- tinued : but then the people, having no political liberty, would have no fecurity for the continuance of the fame laws and the fame adminiftration. - . ift. •IN.' ' ( 69 ) I ft. An eledive Houfe of Aflembly, or reprefentatives of the people. : 2d. That the Members of the Legiflativc Council receive no falari,es as councillors. 3d. That the Habeas xCorpus adt, and the other laws of England relating to perfonal liberty, be made a part of the conftitution. 4th. That trial by jury in civil caufes be likewife made part of the conftitution j and that nine out of twelve may return a ver- didl. ^ ^' ' 5th. That the ancient laws and cuftoms of Canada, relating to landed property, mar- riage fettlements, inheritance and dower, be continued in force in the diftridls or counties of Quebec and Montreal, as they are at prefent bounded : as thefe two dif- trids contain almoft the whole of the lands granted on feudal tenures, and inhabited by ■MM * ' French Canadians. - - &;-• ' - 6th. That the Englifh laws be eftabliftied generally in the new counties, or diftridls of ^-^' F 3 Gifp^ i I i( II ( 70 ) Gafp^, Lunenburgh, Mecklenburgh, Naf- fau, and HefTe -, as thefe diftrids are almoft entirely inhabited by his Majefty*s ancient or natural born fubjed:s. / ./ • >..->; 7th. That the laws of England, relating to commercial affairs, be eftablifhed for the whole country. ' ? ■ 8th. That the criminal laws of England be continued as at prefent in force in that province. ; . v ■ ^ r * Thefe are the principal heads of thefe petitions ; and we hope it will not be faid that there is any thing unreafonable or im* proper, any thing factious or that may be deemed party work, in praying for the eftabiifhment of a government fo nearly refembling thofe of all the other dependen- cies of the empire. r^ V A T r & ^ .1 ' *^ • t vA. .. » 'r:; The political and relative fituation of that province has undergone a great alteration, fincc the Quebec A(ft was paffed. A very great number of his Majcfty's ancient or »t^,qrr' natural ( 71 ) natural born fubjedts have eflablifhed them- felvcs in the province fince that period ; a more extended commerce has occaiioned a greater communication, and formed more in- timate connections between the ancient fub- jedts and the French Canadians; and the more enlightened among the latter have now, in a great meafure, adopted the mode of thinking of the ancient fubjedts with refpedl to civil government. The internal regulations for the province fince the treaty of peace of 1783 are become of much greater importance to the colony and to the empire. In (liort, if we were to admit that the Quebec Adk was pro- per in the year 1774, we may neverthelefs now aflert with confidence that it is repug- nant to the interefts of the province, and dangerous to the fafety of the empire*. * We have already faid, and we repeat it, that the Lcgiflative Council, as eftablilbed by the Quebec Adt, has not the power and * See Appendix, No. XVIII. F4 ^( I Vf cannot ( 72 ) cannot be Aippofed to contain the knowledge neceflary for the legiflature of fuch an ex- tended province ; and, that the arbitrary {yC- tem of government vi^hich has fo long prevail- ed has greatly retarded the progrefs and im- provement of that country : but this has ever been the confequcnce of oppreffion *. The petitions now before the Houfe of Commons are figned by all the old fubjeds, and, by a very numerous body of the mod refpedtable among the new or French Ca- nadians, in the didtridts of Quebec and Mon- treal. That fome oppofition (hould appear againft the reforms prayed for in thefe pe- titions cannot be confidered as extraordi- * I conceive that no laws in the detail, can be well formed for any country, but by a legiflative body upon the fpot; becaufe fuch a body bed knows its own wants, and how to find the means, and how to apply them. The co- lonies of Georgia and Nova Scotia were long drooping under a military government ; the extraordinary im- provements of them, from the moment they have been permitted to make laws for themfelves, is a conclufive argument. Dr. Marriot's Report. .... . nary; ). ( 73 ) nary j private intereft, or felfifli views, have often prevented the wifeft and moft advan- tageous reforms. Unanimity of fentiment in a nation is a thing not known in hiftory ; what country was ever unanimous on any one point or principle ? ^ : To prevent, in fome meafure, the per- nicious efFedls of falfe reports on the objedts of the reforms prayed for, and, for the in- formation of the public in general, the Com- mittees named and appointed to carry for- ward and fupport thefe petitions publifhed them with a few remarks on the feveral claufes thereof, in the French language, and diflributed them all over the province*. Thofe who have taken the lead in the pretended oppofition to the reforms prayed for in thefe petitions, are principally of that clafs of the people who call themfelves gen- try; but we flatter ourfelves that their re- prefentations will not have much influence * See Appendix, No. XIX. 0' ill If, •I with • I I ;(: i ( 74 ) with the Britifli Icgiflaturc •(• ; more parti- cularly as they are confufed and contradic- tory. It is evident they muft have been greatly embarafTed in framing their me- morials^ to fave appearances v^ith the pub- lic; for, though they have declared that they are againft the reform, they have at the fame time prayed for the enjoyment of all the objedls of thefe reforms in a very pointed manner. ; r ., ;; <- ..i In a petition to his Majefly, dated in Augufl: 1783, they fay,—'* Que votre tr^s *' gracieufe Majefl^, toujours attentif apro- ** curer le bonheur du peuple foumis a fon '* empire, voudra bien nous etre favorable, *' et nous admettre fans aucune diftindtion. t But the Seigneurs and Nobleffe by virtue of their fiefs, and the officers and nobles by patent, who have ferved in the French troops, are, the one too inconfequential, and the other too miferable, in point of property, to merit any diftindlion by trials, or, in the nature of the punifhment. To compare them to Britifli Peers would be to form an argument of ridicule and not of reafon. Dr. Marriotts Report, ' f* fous . i Ti { 75 ) ** fous quelque forme de gouvernement qu'il ** lui plaira d'ctablir en cette province, a ** la precieufe participation des graces, des ** droits, des privileges et des prerogatives, " dont jouifTent dans toutes les parties *' du globe, tous les fideles fujets de fa " Majefl^*." .. • In another petition to his Majefty dated in December 1784, they fay, — " Le fecond ** objet, tres Gracieux Souveraln, etoit, que ** fous quelque forme de gouvernement qu'il plairoit a votre Majefte d'etablir en cette province, vos fujets Canadiens Catholi- *' ques jouifTent indiftindlement de tous les ** privileges, immunit^s et prerogatives dont ** les fujets Britanniques jouifTent dans * We requefl that your moft gracious Majefty, who is ever inclined to promote the happinefs of all the people fubjed^ to your empire, will favourably hear us, and ad- mit us without any diftindlion, under whatever form of go- vernment your Majefty may be pleafed to eftabl'.) in this province, to a precious participation in all the favours, rights, privileges, and prerogatives, which all your Ma- jefty's faithful fubjeds enjoy in every part of the world. ' "* " toutes €t €€ .:!- t ' ( 76 ) *' toutcs les parties du globe foumifcs ^ " votrc empire*." ;• Thefe are the prayers of this pretended oppofition. The petitions now before the Houfe of Commons do not afk for any thing more than the rights and privileges of Britifli fubjcdls. It is evident therefore, that thefe counter petitions, as they are called, are only fo in name, for they agree in fiibftance writh thofe under the difcuffion of Parliament. Further, in a petition they addrefled to his Majefty, dated the 13th of October laft, they fay, — ** Nos demandes, *' Augufte Monarque, fe reduifent a confer- " ver nos Loix municipales, et qu'ils " foyent flridement obferv^es; quil y ait * Our fecond requeft, moft gracious Sovereign, was, that under whatever kind of government it fhould pleafe your Majefty to cftablifli in this province, your Canadian Catholic fiibjefth e m- duftry of the people; but no conftitution i ' G 2 can ( 84 1 I ' 1 Ms m can be called free where the people are not allowed to participate of the legiflative au- thority by their reprefentatives*: This is the great criterion of freedom; and it is ex- tremely natural for all Britifli fubjedls, as they know the value of it, to flruggle for fuch a valuable right. Great Britain has conftantly acknowledged this principle in the conftitution flie has granted to all her colonies ; and by that means has rendered them more flourifhing and profperous than thofe of other nations -f*. * As in a free ftate, every man who is fuppofed a free agent, ought to be his own governor ; fo the legiflative power ibould refide in the whole body of the people. But fince this is impoflible in large ftates, and in fmall ones is fubjedt to many inconveniences, it is fit people fhouid aft, by their reprefentatives, what they cannot aft by themfelves. Montefquieu. t As men are fond of introducing into other places what they have eftabliflied among themfelves, they (mean- ing Great Britain) have given the people of their Colonies the form of their owngovernment; and this Government, carrying profperity along with it, they have formed great nations in the forcfts they were fent to inhabit. Montefquieu. As ( 85 ) As all parties, therefore, agree in com- plaining of the prefent legiflature of the pro- . vince, becaufe it is compofed of a permanent council only, and the members of it are, from its conftitution, confidered as in too de- pendant a fituation, we hope no material ob- jediion can be raifed againftaHoufe ofRe- prefentatives for the province*. The legif- lative afts of that body will be liable to the difcuffion anddiflentof thelegillative Coun- cil, which will be entirely named by his Ma- jefty ; and the ads, when agreed on by both, will not have the force of law, unlefs ratified by the Governor; and after all, they will ftill be fubjedt to the revifion of his Majefty, and to be rejedled, as in his wifdom he may fee * When different legiflative bodies fucceed one ano- ther, the people who have a bad opinion of that which is fitting, may reafonably entertain fome hopes of the next; but, were it to be always the fame body, the people upon feeing it once corrupted, would no longer expert any good from its Jawsj and of courfe they would either be- come defpcrate, or fall into a ftate of indolence, Montefquieu. G 3 proper. I! ( 86 ) •I proper. We cannot perceive any danger that can be even apprehended from a body over which Government will have fo many checks; and a Houfe of Reprefentatives converfant in the refouices of the country, and pofllfTed of the powers neceflary for improving them in their whole extent, muft give ftrength and energy to Government, and will prefcnt to the province the pleaf- ing profpctft of fecurely enjoying political znd civil liberty, and of quickly rifing in value and importance to Great Britain. We difclaim every idea or intention of party in difcuffing thefe points, or in pro- pofing or recommending any fyftem, or any part of a lyilem, to the conlideration of Government. We have undertaken it on the broad bafis of reciprocal benefit to the parent ftate and to her dependancy ; •and we hope we have not deviated from that line. A Britiih province labouring under the oppreiTion of a fyftem of laws and ( 87 ) and conftitution of i: vernment not adapted to its fituation, nor well underilood, and praying to be allowed to participate in thofe privileges which their fellow fubjedls enjoy in all the other parts of the empire, ought furely to roufe the patriotic zeal of all the virtuous part of the nation. It is the caufe of liberty and of humanity j and on that acco jnt ftands forcibly recommended to the attention and fupportof the Britilh fenate. To them the Province appeals, as being the guardians of the rights of all the fub- jedls of the empire ; and it is from them the Province expedts relief. Why fhould that Province be the only one belonging to, or dependant on, the crown of thefe realms, doomed to labour under the heavy hand of arbitrary power ? It is contrary to the Britifli conftitution, and a dangerous inno- vation. If the Britifh fenate ever countenances the eflabliihment of arbitrary power in any G 4 the fit \rii ■« i ( 88 ) If lilt the mod dlftant of her fettlements, thcfe principles will fpread, and may at laft attack even Britain herfelf; for if the little finger is allowed to mortify, the contagion will foon fpread over the whole body. ' • It cannot be expected that the people of that province will be fatisfied without a li- beral fyftem of government, and reprefenta- tives in the legiflature. They have, by their ' petitions, flated their grievances to his Ma- jefty and to Parliament, with firmnefs and moderation. By a fleady perfeverance in pur- fuit of their rights and privileges, they have now the profpedt of having thcfe petitions foon brought under the difcuflion of the Bri- tifh fencte; and they cannot doubt but they will receive that relief which they merit, from having fo long patiently endured fuch accumulated opprcffion. They hope that his mod gracious Majefty and Parliament, will fee the propriety, the policy, the juf- tice of giving to that province a liberal con- flitution. ( 89 ) ftitution; as not any thing fliort of a houfe of reprefentatives can efFc<5lually cure the diforders which have fo long prevailed and have taken fuch deep root in that country, or reftore that confidence in government, and produce that harmony, which are fo neceflary to the public peace. ' Schools and feminaries for the education of youth are much wanted, to rtfcue the rifing generation from that profound Itate of ignorance which has fo long difgraced the province : There are no proper court hou fes, poor houfes, infirmaries, or houfes of cor- redtion, in the province; the prifons are in a ruinous fituation, and the markets not properly eftabliflied ; the police of the towns is in a very imperfedl ftate ; the high ways are at times almofl impafTable; bridges are become necefTary in many places to fa- cilitate communication ; and money is want- ed for all thofe important objedts. Under IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I |43 130 Ul 125 u. 122 12.2 us 140 2.0 I iiiim |i.25 „ U ^ < 6" ► VI 0% Va '^' 7] 7 /^ Photographic Sciences Corporation ^:y^ 23 WEST MAIN STREET WEBSTER, N.Y. MSSO (716)872-4503 ( 90 ) Under a liberal fyflem, the hands of go- vernment will be flrengthened, the people would feel themfelves intereded in the fup- port of it, and in the prefervation and de- fence of the province ; agriculture would be Improved ; that, and the fifheries extended ; and the general commerce of the province greatly cncreafed; the demand for Britifh manufadtures augmented; and employment furniihed for fome hundreds of Britifh (hips : The province would rife in importance and population, and become the envy of the late Britifh colonies, now the United States ; and Britain would fave a conjiderable fum now drawn out of her treafury annually for the payment of the officers of the civil govern^ ment of that country, - We are confident that to procure thefe ad- vantages, and to fecure the privileges of Bri- tons to a Britifli colony, the whole powers of the Britifli fenate will be exerted; that that ^ patriotifm ( 91 ) patriotifm which has fo often flionc with benignant fplendor in that auguft body, will find itfelf agreeably employed in refcu- ing the inhabitants of the province of Que- bec from their prefent deplorable fituation ; and we truft, that a govcrntiient will now be eftabliflied for that province, on fuch per- manent and liberal principles, as may call forth the unceaiing gratitude of its inha- bitants, and convince them, that their own comfort and happinefs and that of their pofterity depend on an union with, and fubmiflion to, the imperial Crown and Par- liament of Great Britain. APPENDIX. J I I ,-' t rn*:jvi.- u •' iO *.' »' ( 93 ) APPENDIX. No. I. Extra^ from the Kings Proclamation^ dated yth OSiober, 1763. €C t( ti IC €( €C tt (( «.i787. ■'f •1. I ' Suitable Juftice-Halls and Prifons— the latter> both at Quebec and Montreal, being in a condi- tion neither confident with humanity to the pri- foners, nor fafety to the Sheriffs or the public, and having been repeatedly prefented as infuffi- cient by the Grand Juries of both diftridts. APPENDIX No. V. i Exports from Quebec 1788. 200,358 bufhels wheat 9,868 barrels flour i"- 15,775 quintals bifcuit - 1,770 buibels oats 88 1 bufliels peafe 1 1,972 bufhels flax-feed 5,987 pine and oak plank 69,004 pine boards 401,972 oak ftaves, and heading 211,310 ihingles ! ^ '' r 13*702 ( •«» ) 13.700 hoops 1,528 fhook cafks 1,229 pieces fqiiarc oak timber 8o mafts and bowfprits 66o cafks falmon 705 quintals cod fifh 24 horfes 7 cafks Canada balfam 18 59 , > efTencc of fpruco boxes / *^ 8,629 pounds ginfeng 44,186 pounds adianthum nigrum 395i tons feal oil 2,123 quintals pot and pearl afhes 1,166 pounds whalebone 200 buftiels cranberries 22,000. onions - ^ • 295 dozen handfpikes 130,758 beaver fkins 56,731 martin do. 20,177 otter do, 12,186 mink do. 4,702 fifhcr do. 7,510 fox do, 1 15,041 bear do. 151.535 deer do. in the hair 3.244i pounds drefled deer leather 106,753 mufqualh fkins ^^5y5S^ racoon do. .-.^^V'%1 H3 • 7,ofo ■'■( • . - - ( 102 ) • • 7,o6o cafed cat do. ' - - T 2,l6l open cat do. ' ,' ' 9,621 wolf do. 13,680 elk ": dp. , / ^ 438 wolvering do. 35 panther do. 175 feal do. I weazle 2,794 pounds caftoruni Cujlom-houfe^ 10th November, 1788. Shipped from the jijhing pojls within the Pro- vince, in the Gulph of St. Laurence and Streights of Belle Jfky the Reports of which , never come to the Cujiom-houfe ofQueheC'^ about 8o,coo cwt. dried cod fi(h 8,000 tiercel of falmon - 500 barrels of herrings * 1 1 ,000 feal fkins " ' ' 800 tons of oil ' • • About lOjOOol. value of furs, and fome whalebone. Imported ( 103 ) Imported into Quebec in I'/SS, from the Ciiflom- . ; ^ ' boufe Books, \ Liquors, ^5357 puncheons of rum 585 do. of Britifli brandy 1,484 do. of melafles 976 pipes "1 1,226 hhds. Wines 96 barrels J j[,794 hhds, of porter 138 ' 731 40 -4^ 208 95 273 596 96,850 i>35o 1,079 } Mufcovado fugar _ Sundries, large hhds. barrels and tierces boxes chocolate calks cocoa cafks bag hhds. refined fugar ' chefts of tea '^ ^ v bufliels of fait • " ' tons 1 Britifh coals, fay in all chaldrons / 2,600 tons coals. afkst '^ > coiiee ags J H4 APPENDIX. ( 104 ) APPENDIX, No. VL Extradt from a Protejl by Geo, Allfopp^ Efq. Member of the Legijlative Council of Quebec » in Council, 6th March, 1780. ' I. IT muft be allowed, that there is manifeft want of order and regularity in the Court of Common Pleas i the firft judges or prefidents of thofe courts not being verfed in the fcience of the law, or the ufage of courts of judicature, confequently cannot be fuppofed capable to form or keep up proper regulations for that end ; nor do they confine themfelves to rules of law, but occafionally decide on the equity of the cafe, contrary to the letter of the law ; the impropriety whereof cannot be better defined than in the words and language of a law officer of refpedt- able authority, in his obfervations on the former Court of Common Pleas, of which the prefident of the Legiflative Council, and the three judges of the Common Pleas, now of the council, were members. - ** But how vague and uncertain iheir proceed- ings, as a court of equity, muft be, without one cflablilhed maxim of equity in the court ? how ■^.'t' ill i 1 ( 105 ) ill calculated to preferve (what it certainly wasi not intended to preferve) an ancient fyflem of laws, which were to be admitted or rejedted upon motives of equity, adopted by gentlemen who merit however no other imputation, than the want of education in, or acquaintance with, courts of law or equity, and the confufion in which fuch decifions muft neceflarily be in- volved, are matters upon which, I think, I need not enlarge ?" Since the Quebec Adt took place, little or no beneficial alteration has happened in the pro- ceedings of thefe courts; on the contrary, the only defirable parts of the former fyftem have been taken away, the fubjedt has been deprived of the benefit of juries in adtions for perfonal injuries ; the merchant of the decifion of caules by the law of merchants, and according to the laws of England, heretofore in ufe, prior to the introduction of the Quebec Bill ; and no pojitive laWy no fixed or ejiablijhed rule to fupply ihofe de» fe£ls. The courts, now fole judges ofthefadt, and of the law, in all cafes, and though gene- rally unacquainted with law, and particularly with the laws of commerce, are left to their own judgments ; confequently their decifions are too arbitrary, and their power too unbounded to tally with the principles of the Britifli conflitu- tion! ■'- ' To ^ 'I ( io6 ) To prove thefe aiTertions, it will be confix dered, that the lazvs and cujloms of Canada, which form the moft imperfed fyftem in the world, for a commercial people, have, in matters of trade, been long fince exploded in- France, and the Code Marchand introauced in all their towns in its ftead. Canada, before the conqueft of it by his Majefty's arms, had little or no trade of confe- quence, except that of the India Company for furs, who monopolized almofl: the whole ; and, there- fore, probably not having fo great occafion for the Code Marchand, ox jurifdi^ion confulaire, it was not introduced into this country^ V APPENDIX, No. VII. Extradt from a Petition delivered to Lord George Germaine, Secretary of State for the American Department, 9.d April, 1778, by the Canadian Merchants then in London, THE Ordinances lately made by the Gover- nor and Council in aid of the French law, have contributed to increafe the general diflatisfac- tion. This Council, when only twelve mem- bers were prefent, and each of them bound hy an ( I07 ) an oath of ficrecy, proceeded to make laws with- out requiring the leaft information, and with the mojl total difregard of an application from the mer- chants who petitioned upon grounds of general uti- lity, that they might not be deprived of the mer- cantile laws of England, The ordinances furnifli further matter of complaint, becaufe of the ambi- guous terms in which they are exprejfed, of the inde- finite powers which they give to the judges. APPENDIX, No. VIII. Extradi of a Petition from the Canadians to bis Majejly in September 1784. SUR le fecond objet. Sire, c'eft que non-ob- (lant la faveur que vous avez accordee a votrc peuple Canadien, en le confervant dans fes loix municipalles, il n'en jouit qu* imparfaitement, et la caufe derive de ce que le Confeil Legiflatif etant compoft aux deux tiers d*anciens rujecs, ces derniers ont toujours la preponderance et font aes changementSy et alterations a nos loix, quand bon leur fembky et relativement a leurs interets. ;' Il APPENDIX. s ( io8 > APPENDIX, No. IX. - Extract from a Memorial of the Merchants of London (trading to Quebec) to J^^uiftry, dated the Q^fbjanuary, iyS6. THE prefent code of laws, if the mixture of French and Englifh laws may be fo called, not being well under flood, the execution of them is fubjeft to much difficulty and uncertainty ; among other inconveniences, perfons often claina the right of both, and take the advantage of that which befl fuits their purpofc ; by thefe and other means, the payment of debts are evaded, and right and property is rendered un- certain and infecure. The lofles the Britifh mer- chants have fufFered from this evil, within the laft three years, has occafioned,the ruin of many ; and fuch is the prefent want of confidence and want of credit in confequence of thefe difafters, that common ruin and general diftrefs muft enfue, if fome effedual remedy be not immediately ap- plied. •■'- '-■-■'•■ ^- ■' ■•^>'--^^' : From the petition delivered laft year to the Right Honourable Lord Sydney, figned by upwards of 1800 of the principal inhabitants; . r*.; . from ( 109 ) from the letters lately addreffed to us from the committee of Quebec and Montreal on this fub- jed, (copies of which arc hereunto annexed,) and moreover, from Our own knowledge, and the particular information Our connections in that country afford Us, We are clearly and umni- tnoujly of opinion, that for the relief and redrefs of ihefe evils, and the many other defeats of the prefent conjlitution of that government , a provincial legijla^ ture, or houfe of ajfembly, ejiabli/hed on the fame prin* ciples as in every other Britifh colony in America, will he effeSlual, We are equally confident, that it is the earnejl wifh anddefire (whatever may have been reprefented to the contrary) of the principal as well as the generality of the inhabitants of the province, both old and new fubjeSis, (and to which the loyal refugees have alfo added their teftimony by petition) to be go- verned by Biitiih laws, to be made and adminijlered "according to the Britifh conflitution ; they found their claim to it, not only as Britifh fubjedts, but under his Majefly's fpecial proclamation of the 7th OAober, 1763. ^^ We conceive no other form of government will fa- iisfy and quiet their minds, fecure their rights, and proteSl Our property. We, therefore, feel it Out duty to recommend, in the mofi. earnefi manner, this nteafure to his Majejly's miniflers, as the mofl ejen- tial for the fecurity and profperity of this valuable - province ; province; and that, that obnoxious and impolitic law, the adt for fubjeding the Britifh fubjcds of Canada to a government fo repugnant to the ideas of Britons, and the Britifh conftitution, and which was fo often cried out againft, as one of the caufes of the defedlion of the neighbouring colonies, may no longer difturb the peace of the loyal fubjcds of this province. ■Xi \*\ '.i APPENDIX. No. X. All . \'i ExtraB of a Letter from George Alljbpp, Efq, . Member of the Legijlative Council, to Lord George Germaine, dated Qgth OSioher, 1780. *' HIS Majefty and his minifters will ever be mifinformed when their information is the re-» fult of enquiries made by interefted perfons^ or from thofe who fliall affociate with, and take up their fyftem from particular chara(fters linked to each other. Your Lordlhip will pardon me if I obferve, that it is a fatal truth, in my humble apprehenfion, that fuch has been too much the cafe, with refpe£t to the information the crown has unhappily received from this province." ^^- . '■" -'• * \ APPENDIX- ( III ) APPENDIX. No. XI. The following Articles are from the Report of ' Merchants of Quebec to the Legijlative Coun^ cil, dated 6th January, 1787. Article X. The King's Proclamation of 0 ExtraBJrom Report of the Merchants of Mon- treal, to tbe Legijlative Coimcil, 23^ Jan. Upon the whole of the obfcrvations which we have humbly offered, may be colledted the utter impofHbiUty of promoting the welfare of this Fro- vince, as a Britijh Colony ^ under the prefent Jyjiem of government, ,. .^v >.<,; .;n r^' - -v-\- -'■ ', • '— ^ This ( "5 ) This confideration wc fubmit to the Honoura- ble Committee of Council, and refer them to the petition we had the honour to tranfmit to his Ma- jefty and both Houfes of Parliament two years ago, for granting a Houfe of Affembly to his Majefty's faithful fubjeds of this Province, a copy pf which accompanies this Report. Extradtfrwn Report of Committee of Legijlativc Council on Commercial Affairs, to Lord Dor" chejter^ dated sg/i Jan. 1787. On the 6th January, the merchants of Quebec delivered their opinions and reprefentations on a variety of objeds of commercial and political re- gulations, to which they have annexed a copy of a petition to his Majefly, tranfmitted to the Right Hon. Lord Sydney in the fpring of 1785. On the 27th January, the magiftrates and mer- chants of Montreal delivered their opinions. In both of thefe they hceve deeply and accurately treatedy and judicioujly reafoned on the aSiualJttuation and various interejls of the Province. We ihould therefore be wanting to them and to your Excellency, ifzve did not annex and recoM' mend their reprefentations to your Lord/hip*s mojl fe* rious confideration and reJleSlion, I2 APPENDIX, ( ii6 ) APPENDIX. No. XII. m ExtraBs from a Protejl made in Legijlative Council, Quebec , > " , 1787. DISSENriENr, Firji, Becaufe the refufal to commit the Bill, implies a difapprobation of ev^ry part of it, as incapable of being fo altered as to retain a (ingle claufe, and amounts as clearly to a rejection of every paragraph of it, as if each had been fepa- rately voted to be ftruck out ; and it was fo ex- plained and underflood, and that intention avowed by every fpeaker againft the commitment. Second. Becaufe the regulations for the admi- niftration of juftice in all the Courts of Com- mon Pleas, as well as in the monthly Court of Appeals, were fo obvioully expedient in the eye of mere abftraft theory, as to require only to be read to be approved, and might have been con- tended for by the Judges, without any difparage- mcnt of character or office j and ferved for no mean defence againfl the clamours and complaints to which Courts, where the Judges find both law and fa^, are obnoxious ; and efpecially infuch a country as this, where they hold the mighty power of fettling the ^uejUon, zvhat %vas or was not, the cujlom and ufage,, ( tt? ) m well as the law, of the Colony antecedent f the fonqueft, . Third, Becaufe one of the beft fecurities for the permanent duration of the privilege gratited by the ftatute, commonly called the Quebec Adt, to his Majefty*s Canadian fubjeds, is their ready tnanifeftation of a correfpondtnt liberality to his Majefty's native-born fubjedls, through the voice of that legiflature which the ftatue ere and his Reprefentative, and with the fincereft defire to preferve the tranquillity of the Province, and the interefts of every order of men in it, proteftants and catholics^ by all the means that may confid: I 4 with ( 120 ) with ouf duty to the ctown, and a warm and fllicftionate regard for the weal of the Bruilh empirei ;•" ■> ^'■- - • ' ■:^.m . ,, ., .^, , \.^^eifec, igtb March lySy* . :> Monday, g o'clock, A, M, ',, )» (Signed) .- .-. • ,_ : -. i William Smith, Chief Juftice. r.iv ' Hugh Finlay, Poft Mafter General, rv; :; . . Edward Harrison. .... ;■ John Collins, Deputy Surveyor General. • George Pownall, Secretary of the Province. Henry Caldwell, late Dep. Receiver Gen. William Grant, late Dep. Receiver Gen, • Samuel Holland, Surveyor General. Sir John Johnstone, Bart. Super-Intendant - ; of Indian affairs. • ;• - 1 r ' 1 I .■, .»■ ! •■ > . ! ., . !' V'-. ■•.•»*}' APPENDIX, No. XIII. / Exlradt from Paper laid before LegiflativQ Council iStb April 1787, by the Committee of Merchants. ■ : • - " . / •■ . , « . THAT the French laws as faid to be efta- blifhcd, and as propofed to be continued, are Zibolly inadequate to fecure the peace and profperity of ( "I ) of the King*s natural born fubJeSls rejtding in the Province; or wifely and jujily to protect and govern commercial rights; or to hold out as the means (but would prove a powerful bar) to population. I. That under thefe laws, our civil rights are un- known, and property is infecure. That infinite injury has arifen from holding the mercantile interefts and rights to be governed and adminiftered in the King's Court by fuch laws. •< ..'7 ■■' .^■•'' v^/ . .,.,;. .._,. A . ... That the merchants in London trading to this Province, had complained to the King's mini- llers of thefe evils, and of the ruinous effeds that actually had arifen, and the confequences that muft arife, from fuch a fyftem or cod^ of laws, and had prayed for relief. That the King's new fubjedts, the Canadians, in the year 1773, v.hen they petitioned his Ma- jefty to obtain a fecurity in their property and pofleffions by the known rules of their ancient laws, at the fame moment implored his Majefty equally to extend his protecting hands and care to his natural-born (ancient) fubjedts. ., That the conftitutional principle of coloniza- tion, in every n.odern empire, is the extenfton to fuch colony 9J the national laws for fecuring the perfonal rights of the natural-born fubjedts. •-., .. That fuch would be the only wife and politi- cal means to populate this extcnfive colony, to increafe ( 1" ) incrcafe its commerce, to improve its utility ind fubordination to Great Britain, and in that^ and by thofe laws, to render the people wealthy, numerous and happy. ' That the legal and judicial conftrudion given in this Province upon the Qiiebec Adl was, that it fully introduced the general edidts and ordi- nances of France, and the cuftom of Paris, a» ufed and exercifed during the French govern- ment as the only rule in his Majefty's Courts for deciding civil rights between iz// his Majefly's fubjeds, old and new. ' ' f "rv .' ' rr , That the judgments of the faid courts were not made upon fuch rule of prevailing law, either in uni- formity admitting or rejeding the edidls or or- dinances, or the articles of the cuftom of Paris ; and did at times admit either , and at times rejeSl both, and adopt the Englifh if^atute and common law, as xhehw, to didmmiier fubftantialjujice: ^j <■ That this uncertainty in the judical proceed*^ ings and judgme!nts of law, and in the exercife of a judicial authority not founded in the law of the province that legally ought to prevail, and there- by legiflating, will (land proved Upon enquiry into the feveral cafes dated at the Bar of the Council, and others, which your petitione.L are ready to adduce : That there was not that eflential uniformity in the judgments, and regularity in the proceed- ings ( "3 ) itigs of the faid courts abfolutely requifite to fe- cur.c the rights of the fubjeft : That thofe evils were manifeft, and ruinous to the King's fubjefts; that they refulted from the caufes which the propofed bill would not only continue, but infinitely increafe : That from want of certainty in t;he rules of right, and of known laws fuited to the intereft of the nation and its commerce in this province, infinite diftrefs had fallen on the King's fubjedts, and had oceaiioned great difturbance in their minds ; That the laws proper to be eftablifhed were thofe of England, in perfonal and civil rights ; efpecially between all his Majefty's ancient fubjedts in any commercial cafe. «> ,' Extradt frmn Papers laid before Legijlative Council^ by the Council for the Commerce* ^oth April 1787. AND further, on the part of the petitioners, by a variety of proofs to ihew and fupport the charge of an unjit adminijlration of jujiice in his Majejlfs courts in this province y to wit, the Courts of Common Pleas, holding cognizance of caufes above and under ten pounds flerling; and, by fully exhibiting the judicial proceedings of the faid m :i ( '24 J (aid c6urts, to fnew the want of order, tattle, n* gularity, certainty, and the great dehiys and procraf" iinathns therein, and to make appear the infecurity of civil rights, and the dijlrefs of his Majefty'jl fubjedls under the prefent laws, and the poweri exercifed in the adminiftration of juftice by his Majefly's faid courts. '' " ■" ''" '"'♦^'* '^^i^' ■ I III . " r ,:: r:L,':*/:i t?;' ■ ')':> . i. . * / vJ . • J ,;i APPENDIX. No. XIV. J&««§r Extradfs from the Evidence giveti be-;- fore the Commiffiotiersfor the Invefligation into the pafl Adminiflration of Jujiice in the Pro-- vince of Quebec, ExtraSl from the Evidence of William Grant, Efq. Member of the Legijlative CounciU and one of the Judges in the Court of Appeals. Anfiver XL I have read pleas, declara- tions, anfwers, and reafons of appeal, where both French and Englifh law were cited as ap- plicable. Anjzver XIII. T^he Canadian judges, from their reafoning, I believe, generally give their judgments on French lazvs, and what appears equitable to them. There ( 1-3 ) T'hcre are of the Englijh judges in the Court of Ap^ peals, who do not pretend to underftand the French law, or law books ; their decijions, there* fore, muji be given on their ideas of the Englijh law, or on the fcnfe of the principles of equity arijing out of each particular cafe. The Englifli gentlemen, who underftand both languages, have always, in my opinion, made up their judgments, either on the laws of Canada ; that is, the written cuftom of Paris, and fuch judg- ments, ordinances, and declarations of the in- tendants and fuperior council, and edidts, ordi- nances, and declarations of the Kings of France, as in their apprehenfions were introduced into, and applicable to the ftate of, the colony anteced- ant to the conqueft, or vpon Englijh law andjla- tutes, as the jujiice of the cafe required, Pecifions on real right, iince the Quebec Adt, have, or ought to have been governed by French law ; many mixed and perfonal actions, particularly perfonal adtions of a commercial nature, have been, and tnujl be decided by Englijh law and ufage, or par* ticipate, to do juftice^ of Kngliffj (in4 Frenck* Anfwer XVIJI. Thp Court of Appeals con- fifts of twenty-three members, Canadians and Englifti ; any five of whom, with the governor, lieutenant governor, or chief juftice, make a Court of Appeals ; each member gives his vote or voice on each caufe, beginning with the youngeft ( 126 ) youngeft ; and the majority of votes decide it. ^he Judges of this Courts as of the Common Pleas, (the Chief Juftice excepted) have not been pro* fejlionally bred to the law ; therefore y it is not fur- prtfing that judgments of courts, fo compofed, and fa JluSluating, Jhould be contradiSkry. I do not believe, tbat any court in the province has laid down, or ejia- blijhed by its judgments, the law to govern commer* cial and perfonal anions mii\ C2i{cs. Anfwer XIX. The gentlemen of the bar have appeared to mc much embarafled to advife iheir clients of the law, which the courts would adopt to decide perfonal adtions, and ilill more fo to afcer- tain the law that would or ought to govern the points of practice. The ordinances of the pro- vince, the code civil of Louis XIV. in 1667, commercial laws of France and England are reforted to as imagination diredls. I have had occafion to confult the Engliih and Canadian ad- vocates or pradtitioners, and have found fuch to be their legal advice. ExtraB from the Evidence of Hugh Finlay, Efq. Member of the Legiflative Council, and yudge in the Court of Appeals. Anfwer XVII. The caufes Dobie and Gray v. Lyons ; Anderfon and Parr v. Thomfon and Shaw ; ( Jl? ) Shaw ; were founded upon mercantile tranfac* tions, and adjudged in the Court of Appeals by thf ancient laws of Canada, • . ; . Anfwsr XVIII, From my notes I find the folhnving caufes were decided in the Courts of Ap- peals on the principles of Englijh hizv, — SchefFellin V. William Grant; Louis Aimc v. Barrack Hays; Graham v. Park ; M'Kenzie v, Braih and Lindefay ; Grant and Blackwood v, Thomfon and Shaw ; Freeman v. Widow Pcrrault. Anfwer XIX. / have not known that the Court of Appeals, in the decijion of any caufe, ever formally laid down a general principle of law to govern the tranfaSlions of his Majejiy*s fubjeHs ; but I believe both the Englifti and Canadians, members of that Court, decide according to their conceptions of the fpirit, true intent and meaning of the Quebec Aft. Some of the members, and I believe all the Cana- dian gentlemen, have conceived that that aH has ejlablijhed the ancient laws and cujloms of the country as the rule of decijion in all cafes of what kind or na^ iure foever. Other members again (moft of the Eng' lijhjare of opinion, that where the parties are ancient fubjeSis, the caufe purely Englijh, a mercantile or per- final aHion, to do JlriSl jujiice according to the real fpirit and the true intent of the ^ebec A5, the de- cijion ought to be founded on the rule laid down for deciding a Jimilar cafe in England* Anfwer, • II ( "8 ) Anfwer XX. The cafe of Mabbut and Wil- kinfon, par tie intervenantf, againft Howard, for George Allfopp to feize 19 Hogfheads of brandy unpaid for, according to the coutN»ie, was given in favour of Howard in the Court of Common Pleas. The judgment was reverfed in the Court of Appeals on principles of EngVJh law. Extract from the Evidence of George Poivnall, Efq^ Member of the Legijlative Council, and Judge in the Court of Appeals, given before the Commifftoners for the Invejligation into the paji Admimflration of Jujlice, Anfwer XIIT. I cannot take upon me to fay what have been the arguments, or what have been the pgliKs of law that may have guided my brother Judges of Appeals in their judgments and decifion, from memory, nor indeed is it in my power, from feldom hearing either their argu- ments or reafoffs whereqn they have grounded their decijions. For my own part, I can fay, that when I con^ ceived the EngliJJo law applied, as particularly in feveral caufes of a mercantile nature, or on bills pf exchange, I have, in fuch caufes, formed my Judgment to the beji of my abilities on thofe laws. ,, Anfwer ( 12^ ) Anfwer XIX. I do not rccollcft any inftance where they have eflabliihed a general rule or pofi- tive principle. ^ I in ills ny APPENDIX^ No. XV. iBeing ExtraBs from the Evidence given beforit the Commijjioners for the Invejligation into the paft Admirtiflration qf Jujlice in the Prmnc^ of Quebec, ExtraBfrom the Evidence of William Bum-' mer Powelh Efq, Barrifier and Pradfitioner at the Bar of MontreaL Anfwer II. During my t)radice, until the commencement of the laft July Term, I have inftituted 265 adtions for fums above lol. amount- ing together to about the fum of one hundred and ten thou/and pounds, nine tenths of which fum Ifup* pofe to have become due from mercantile tranfaSlions^ and of that again, nine tenths Wherein old fubjeSli were plaintiffs^ . ; .. . Anfiver IV. I have found the judgments of the Court of Common Pleas, for the diftrift of Montreal, founded fometimes on the ordinances iJider to have been decided ra- ther on the Judges* fenfe of equity and moral re^i- tude, than on any known principle of law. v \ ■ jinfiver "Kill. I truly believe, that the major part of the judgments upon caufes pleaded, have been pro- nounced without any immediate attention to any direct law. . . : ^ " The judgments upon the fame points have been^ fo incopftjienl , that it was not poffible to advife on any given cafe fubjecl to the leafl difcujion, what would be the probable ifTue. . : ., , /nfwer XVI. I have heard more than once, but cannot anfwer when, the Judges Frafer and Rouville declare from the Bench, that the an- cient laws of Canada, with the ordinances of the Legiflative Council, were the fole laws for deci- fion of all civil anions in their courts, and I have heard (but cannot fix the time when) Judge Southoufe declare upon the Bench, that he had no occafion for a knowledge of the French law contained in the books then on the table in .Court, as bis. confcience was the law which guided his »i !•> :a ExtraSl ( '31 ) ExtraH from the Evidence of James Walker ^ EJq. Pradiitioner at the Bar of Montreal. Anfwer II. I cannot afcertain the number of actions I was employed in prior to the ift of Ja- nuary 1780, as I kept no account of them be- fore that time ; but fince then, to the beginning of laft Term, making feven years and a half, I inftituted five hundred and eighty one ; was of counfel in five hundred and odd others ; and de- fended four hundred and twenty, all aiftions above ten pounds fterling ; as to Friday fuits, or a(ftions under ten pounds flcrling that [ have been employed in, on the nearell computation I can make, they exceed three thoufand within the fame cdmpafs of time ; and I believe, on a pretty exadt calculation taken from my dockets and papers, I find that thofe various adlions exceed three hundred thoufand pounds, of which about nine* teen twentieths has arofe from mercantile tranfac- tions, Anfwer X. The ufe or neceflity I found in ap- plying fuch different quotations of laws from dif- ferent countries to be taken up and confidered by the Court in giving their judgment, pro- ceeded from a fludied attention on my part in the beginning of my practice in this court, to difcover what fixed or certain laws guided the K 2 court court in making and fornfiing their judgments, and from the variety of decifions given in fimi* lar cafes, which I conceived entitled to fimilar judgments, I concluded that no fixed lawy or any general rule or principle of law, governed them in making up the fame ; but on the contrary, had reafon to believe, that their judgments were in ge^ neral arbitrary, and governed either by the character and quality of the parties, or from their own ideas of fight and wrong, without adverting to any law ; from which obfcrvation, / have given opinions to rijh trials, where the governing law of the province has not been favourable to my caufe, confiding wholly for fuccefs in that uncertainty which appeared to me to pervade the whole of their judgments ; from thofc motives, and under thofe circumftances, / cited fuch law as I could meet with in any degree applica- ble to my cafe, and zvhen my client has not been totally out of favour with the court, I have frequently pre* vailed, . . Anfwer XII. And a few days afterwards per- mitted a writ of fcire facias, a procefs grounded on the common law of England, and unknown by the French law, to ifluc on the judgment fo en- tered. Anfwer XVI. I have myfelf publicly com- plained, and heard every praftitioner at the Bar , €omplain,of the uncertainty of the proceedings, and of the judgments of the /aid Court, for the want of \ having ( 133 ) I having or knowing any general or determinate law, by which caufes in general, or caufes of any particular nature, real or perfonal, before the faid Court, would be adjudged ; and I have my felf complained, and heard every practitioner complain of the irregularity of the proceedings of the faid Court, and of its delays in hearing and ad* judging caufes before it. Anfwer XVII. I have heard Mr. Juftice Frafer declare, that the ancient laws as ufed, and in force in this province prior to the eonqueft, were the laws to prevail for the government of all civil adlions and fuits before his Majefty's courts • and I have likewife heard Mr. Juflice Southoufe give his opinion, though I cannot poiitively fay whether from the Bench, that the law of England was the 'aw that he ihould follow in the deter- mination of fuits between Engliihman and £ng* lifhman. ExtraB from the Evidence of Arthur David" foTif Efq. Attorney at Law and PraStitioner at the Bar of Montreal. Anfwer IV. The claims of both thefe plaintiffs were founded on the coutume de Paris, which I have heard admitted to he law, and not to he law, or at leqft have found it not to be followed or ob" K 3 ' ferved ''^. ( 134 ) ■^ ,:^« ferved as fuch, by all or any of the Judges of the faid Court, except Mr. Judg'j Southoufe, whom I have always found conftftent hi his declarations, that it zvas no lazv to govern him. Anfwer VI. Many caufes, I have no doubt would have been determined diiferently from what they were, had Tome edidts or ordinances which, it is my opinion, were legally in force in this province fince the Quebec Adl took ef- fed, been admitted as law ; but whether fuch caufes, as may have been fo determined, were tried and judged in the faid Court upon the cuf- tom of Paris, or Roman and civil law, is beft l^nown to the Co'irt or Judges who tried them. 7 having feldom or never had the fatisfaElion to be told, er to know on what lazv their decijions were founded i and moft of the decifions, I have no doubt in my own mind, having been given not in proper legal conformity to any known laiJO, but according to the ideas and will or pleafure of the Judges, Anfwer VII. And that the power heretofore exercifed by the faid Judges of granting confer- vatory feizures, (every one of which in my opi- nion, makes the perfon, againft whom it is put in force, to all intents and purpofes a bankrupt, if of a fituation or profeflion to became one,) in the moft unlimited manner, and upon the moft vague and frivolous fuggeftion and pretence^ was of a moft illegal, dangerous, and unwarrantable nature, and 4 *'^ ( 135 ) ;/§• hig with danger to the firft men in this diftrl(5l, and there is no law in this or any other country, having the leaft pretenfions to freedom, that can or ought to arm judges with fuch dlfcretionary powers y as to make the firji chara5lers in the commuh nity, and particularly mercantile characters, tremble at a judge's, nod, Anfwer XIII. My mode of conducting my clients* caufes in the faid Court, as the means moft likely to be attended with fucccfs, has been to v.fe fuch arguments as I have found bejl adapted to what I cannot call lefs than the prejudices of the Judges, after experiencing, to my great diiTatif- fadion and concern, that the bed and moft legal arguments, as well as authorities, w'.iich, in my judgment, I could adduce, were fo far from hav- ing weight with them, that they were often treated as mere chicane. Anfiver XVI. I have heard Mr. Judge Frafer judically declare, I cannot take upon me to fay exaflly when, or upon what particular occafions, that the ancient laws, as ufed and in force in this province prior to the conqueft, were to be conft- dered as the laws now in force, for the decifion of civil rights and fuits, or words to that or the like effed ; alfo, on determining caufes refpedt- ing bills and notes, and I believe on the treating fome other caufes which I don't particularly re- coUedt, that the laws of England were to be con^ K 4 Jidered ( «36 ) Jidired as the laws in force , on which laft occafion no other authorities feemingly were confulted by the Court, or had any weight. And I have heard Judge Southoufe feveral times fay, that the ordi- nances sf the province and his confcience were the only guides to govern him in his deciftons, A man tnight fue and have judgment for what- ever he pleafed, in cafe the defendant did not ap- pear and defend the adtion, contrary not only to the fJd ordinances^ but to every other law I know ex- cept in England, in the cafe of fpecialties. The cafe of Wifeman againft Thomas Walker, jun, on the 26th March, 1778, was the fir ft judg- ment by default I have obferved fince the year 1775, without its appearing by the regifter that any proof was given, or required to be given, of the debt. But afterwards there feem to be few or none otherwife, and fome of them even for fjamages, as abovementioned, July 2d J 778. Campeau againft Poudret and Aubert ; judgment by default for a blank fum, for ^Hedged damages^ without proof "The very fum der manded is alfo in blanks and without an attorney's pame for the plaintiff. Same day, Bilfon Fretre againft the fame dcr fendapt. Do. do. July 9th 1778. Soloipon againft Rowland 5 another jud^ent by default for a blank fum, both with regard to the demand and judgment. , September ( 137 ) September 24th, 1778. Jenifon againft Jean Morin Richard ; judgment by default for 38I. 1 6s. damages without proof; according to a for- mer entry too, of the 1 7th September, 35I. only is demanded. December loth, 1778. Jean Volan againft Thomas Lee defendant called — don't appear— condemned to pay the plaintiff 37I. 19s. 9d. with cofls. This is a final judgment, and no default is dated, or appears to have been entered before, according to the ordinance. June 7th, 1784. Col. Caldwell againft Brown ; the defendant was condemned by default^ as appears by the regifter this day (the very fame day that the fummons was returned) to pay the fum demanded by the plaintiff, in which was included the penalty of fin agreement y without proof that he had fujlained any ftamage whatever , by the non-performance of the agreement, or indeed any proof of any part of his demand, which amounted in all to 220I. with cofts. It appears further by the regifter, that on the 14th of the fame month, the defendant was con- demned a fecond time, and in the fecond judgment the faid penalty is mentioned to be 50/. June 26, 1784. Andrews againft Griverat and Vifgar, James Abbot, William Groiftjie, and Montagu Tremble, of Detroit, merchants, judg- ment by default, on a bend of indemnity for 951 81. ?8s, id. lawful money, together with the intereft and ■;: H ( I3S ) and cofls already accrued, and cofl:s of this fuir, amounting to 7I. 10s. 5d. and intercfl: till paid, without the kujl proof that the platNtiff had b^ett damnifieJy or fo much as any fuggeftion or uile- garioii tending that way, except that by virtue of judg.nenrs oiitained againft the lioufe of An- drews, Grivcrat, and Wifgar. " The Plaintiff's *' property w.is become liable to the payment vf the *' JM judgment debts.'* Extract from tie Evidence of Robert Rujfel, Attorney at Law, and Pradiitioner at the ' Bar,QjLiebec, / - ' . i yacque Frichet againjl Pierre Savard, Demand for 20I. 5s. curren- cy. Declaration ftated that plaintiff, being bv trade a baker, he was in the winter of 1775, obliged to bake for the rebels ; that finding the bufinefs too laborious, he took the defendant into partnerlhip ; and that the defendant was indebted to him in confequence 20I. 5s. currency. , . On the 2d of July following, the caufe was tried, when the Court made the following judg- ment, viz. — ** The Court having heard the par- *' ties, likewife the depofition of Charles Dionne, " orders J. Frichet, P. Savard, and Charles *' Dionne, to be committed to the common pri- *' fon referving to give judgment for the flour " belonging ( 139 ) •' belonging to the rebels, left in the cuftody of " the faid Frichct, Savard, and Dionne." The parties and the witnefs were committed injlantf.r^ and, I believe, remained in prifon until releafed by Lord Dorchefter. Anfwer III. The 30th title of the ordinapce of 1667, Article II. whereby all agreements above 100 livres (equal to 4I. 3s. 4d. currency) ihould be reduced into writing, has been quoted in divers caufes in the faid Court as the law of the Province, and admitted as luch, particularly in the caule of Mr. M*Aulay againft Antrobus, wherein the Court refufed parol evidence to prove a leafe above 100 livres. It appears to have been rejeded in the caufe of Henderfon againft Stuart, where the Court (notwithftanding that the verbal leafe mentioned in the plaintiff's declaration ex- ceeded ICO livres) admitted parol evidence oi th6 leafe. The Code Marchand was pleaded by Mr. Conftant Freeman, in the caufe inftituted againft him by Thomas Boylfton, but was rejeSied by the Court, as appears by the judgment. It was alfo quoted by the faid Conftant Freeman, in the fuit inftituted againft him by Drummond and Jordan, as partner of the late Vialars. Mr. Freeman ob- jedled to the Court's admitting parol evidence of the partnerfhip, and quoted the firft anicle of the 4th title, notwithftanding which the Court made an I,' i'M ( 140 ) an interlocutory order, or judgment, admitting John Jones as an evidence, on taking the voir dire oath. It was alfo quoted by Louis Chape- ron, in the caufe inftitutcd againft him by Gre- gorey and Woolfey, and reJeSied without the Courtis qffigning any reafonfor fo doing. On the oppoiition a fin de dtjlraire of the truftees to the eftate of Charles Voyer, in confequence of the execution fued out at the inftance of Cameron, Stuart, and Rofs, againft defendants moveable property, the code marchand was quoted by the truftees and reje£ied, and the eff^^s ordered to be fold by the iheriff. Anfwer XI, There has not been that certainty in a knowledge of the laws from the judicial de- terminations of the Court, that I have been able to inftrud my clients what law Ihould govern the cafe, except in fome cafes not of a commercial nature, where 1 confider^d the coutume to be de- cmve. ^ ♦ ExtraSt from the Evidence of nomas Walker^ Attorney at Law, and Pra^itioner at the Par, Quebec, uuv . , i f f^,»t»i > J 9.'.«; . Anfwer yi. The judgments feldom exprefled upon what law, or by what authority, they were decided.; the Judge*s ideas of right and wrong pre- vailed, I conceive, oftener than any law, Anfwer % ( «4i ) Anfwer Vll. In conducing the caufes in- truded to me, I have quoted, as the bed means of fuccefs, the ftatute and common law of Eng- land, the coutume de Paris, and edidts and or- dinances of the French King, and the Roman and civil laws in writing and verbally, and have to the befl of my power, fupported the admiffi- bility of fuch part or parts of all or either of them, as I confidered applied moil favourably to my client's cafe, or which, from my experience in the Courts, / confidered would have mojl weight with the Judges. To inftance the caufes wherein I have adopted this mode, would be to enumerate every caufe of intricacy, or indeed of confequence, I ever was employed in. Anfwer XI. There has not (as it is flated in the preceding anfwer) been that certainty in the know^ ledge of the knvsfrom the judicial determinations, hy which I could inform my clients on what authority I had gained or loji their fuits. Anjwer XIII. The complaints of the pra£lifers at the bar have been fo loud on the head of uncertainty, that every perfon muft have heard them. It has ever been my conftant opinion to clients, on con- fultation, that we were totally in the dark what law prevailed, and particularly in perfonal adtions, that I knew not how to advife them for the beft. I always confidered the event of a fuit depending upon the principles of law in the Courts in Cana- da, ( '4* ) da, as very precarious, and I appeal to thofe gentlemen whofe caufes I have condiidtcd, or who have applied to me for advice, if I have not been uniform in this idea. / have heard every gentleman of the profejfion here, and at Montreal^ complain grkvot'Jly of the irregularity in the Courts, I recollect, at a meeting of the advocates of Que- bec, fome fhort time after his Honour the Chief Juftice had requefted them for information re- fpeifling the laws and pradtice, and their ideas of what alterations and amendments might be ne- ceflary, that the whole body were unanimous, that we were in a Jlate of diforaer, confujion, and uncer- tainty, in point of rules of lazv and praBice, out of which it was highly neceflary we Ihould be ex- tricated. ' Anfwer XVI. The irregularities that muft ne- ceffarily arife in Courts where there is no rules of pradtice, or where the queftions are involved in uncertainty, are inevitable, and require remedy. Irregularities of another and more dangerous na- ture have arifen, either from the want of profef- fional knowledge in the Judges, or from grofs negledt or inattention ; as for inftance. In Sept. 1782, Cohen profecuted Solomons for the reco- very of a fum due to him, as reader and killer of the fynagogue, and which Solomons was li- able for, as ruler thereof. Defendant denied the debt ; Plaintiff produced evidence ; and there- t .. upon ( Hi ) upon obtained judgment for his demand, with cofts. Solomons appealed, and I was employed by Cohen to defend the appeal. Upon examin- ing the record, 1 found that the depofitions of the witnefles, produced by Cohen in the inferior Court, were not fent down. I thereupon moved the Court of Appeals for a rule on the Judges of the Court below to perfect the record. The rule was granted and tranfmitted. The Judges an- fwered, and returned as follows, viz. ** fVe certify, that M(f Samuel mui Uriah Judab zvere examined as "juitnejfes for the Plaintiff on the trial of this caufe, and from whofe tefiimony the caufe appeared fo clear, that we did not attend to the taking down their evidence, not forefeeing an appeal, (Signed) ^ - /. . « " Montreal, " John Fraser, • o'vjf? 16/^ June, 1783. " Hertel de Rouville.*' The confequence was, the Court of Appeals gave judgment upon the proofs before them. Solomons obtained a reverfal of the judgment appealed from, and my client loft his caufe, and thereby the money which appeared to the Judges fo clearly due to him, and had about thirty pounds coft to pay, becaufe the Judges did not forefee an ap" peal. i .. :^ - - . ^ * r: ,. Aird againft Chamont. In this cafe the judg- ment of the Court of Common Pleas, for the diftria: IC t( (< (€ is It ( 144 > diftridt of Montreal, was founded upon a depo- iition taken at Mr. Judge Frafer's country houfe, and certified by him to be the fame in the fol- lowing words :— €( €i The fame depqfition was made in open Court be- fore judgment was given, although, by fome mif ** take, it was not taken down, ** Long-point y (Signed) " 30//& July, 1787. ' « J. Fraser." Though more than a month after judgment rendered* 1 do confider the irregularities, in general, proceeded from the want of certainty in the ad- miniftration of juftice, and from a want of known laws, rules, and orders of practice, which ought to have been laid down by the Court. As far as my own expejrience and obfervation enable me to form an opinion, and indeed from the obferva- tions of all the gentlemen at the Bar, Imayfafely ajjert, that no pojitive knowledge of the laws could be obtained from the judicial decijions of the Courts in this province ; and fo great was the uncertainty thereof, that after the argument of a caufe, and before judgment, I have frequently feen the event or fuccefs of a fuit decided among the advocates by the turning up of a piece of money, or the drawing of draws. Anfwer ■( H5 ) Anfwer XXI. Grace and favour may he applied With great propriety to a judgment rendered in the Common Pleas of MontreaL • • '"^ - La Breche verfus Billaire, the judgment dates, ** Le tout conftdere fans avoir SgUrd auic temoins du " demandettr, la cour renvoie le dit demandeur defon *' aSlion avec depens--\" • r APPENDIX, No. XVI. Being Extracts from the Evidence given fe- fore the Commiffioner for the Invefligation into the pajl Adminifiratim of Juftice in the Province of Quebec i Extradtfrom the Evidence of miliam GoodalU Efq. Partner in the Houfe of Brook JVatfon and Co. of London, Merchants. Anfwer VIII. I have upwards of eight hundred debtors in this province ; hut from the uncertainty of • Tran/atton.^-'Thc Court having confidered the whole^ without paying any attention to the witnefles of the plaintiff, difmiAes the faid plaintiff from his aAion, with cotts. , ' . L . ' the t' I. /|: ( 146 ) the laws, and the great expcnce created by delays in the Courts, / am afraid to take legal methods to recover the debts which are due to me. Extract from the Evidence of John Toung, Merchant of Quebec. Anfwer IX. I never attended the G)urt of Common Pleas, either from curiofity, or on my own bufinefs, having never had a law fuit, ex- cept as the attorney or agent of others ; but dur- ing the times I have been obliged to attend, I have not heard, on any occafion, the Court or any of the Judges declare, that the bankrupt laws of France, or the code Marchand of Louis XIV. made in 1673, or the Ordinance of 1702, were the laws of this province, until about four- teen or twenty days ago, I received in charge aa a juryman from the Bench, that where they were not altered by the ordinances of the Legiilativ^ Council, they were in full force. ^ . Extract from the Evidence of George Allfoppy Efq. late of the Legiflative Council and Judge in the Court of Appeals, . Anfwer I. Refpedling the caufes wherein my own name or the names of perfons I adted for, '< T do ( 147 ) do appear (ince the year 1776, in the confulta- tions I have held with my advocates, Mr. Monk and Mr. Panet, at Quebec, they have always given me very doubtful opinions of fuccefs, not with regard to the juftice of the caufes I was con- cerned in, but with refpedt /o what the decijion of the Judges might chance to bey from the uncertainty of the laws in general, from not knowing whe- ther the Judges would apply any, or what parti- cular law to the cafe, or according to their wills give equitable decifions, upon the maxim laid down of doing, what the faid Judges termed, fub- ftantial juftice. And this I have underjlood of the Court of Appeals^ as well as the Court of Common Pleas at ^ehec, Anfwer III. For the above, and other motives and reafons affigned in my anfwer to the firft in- terrogatory, but efpecially from the oppofition thofe Judges made to every falutary propofition offered by me to the faid Council, in the feffions of 1779, 1780, 1781 and 1782, for a reform in the courts of law, for granting the King's fub- jedls the laws of England in matters of com- merce and perfonal wrongs, with the trial by a jury, and the benefit of the writ of habeas corpus for perfonal fecurity 'as aforefaid, I conjidered ike faid Judges as inimical to me and to my affairs^ and l^ave therefore dreaded, and been deterredy for many years pajly from bringing fuits into the Courts of Com- L 2 mon I'l II- i^v :il ( ) won Pleas in this province; nor have I done fo unlefs unavoidable. .. . > .-. . '1 Extri0from the Evidence of Andrew Cameron^ Merchant oj Quebec, Anfiver II. I certainly have conlidered myfelf injured by the uncertainty of the laws and irre- gularity of proceedings. My fuits of law have been in the Court of Common Pleas, for the dif- trid of Quebec. In 1 786, 1 had a, fuit to defend V. th Mr. George Irwine in the faid Court, and dt fired leave of the Court to offer proof, and have my evidence fworn to fupport my defence ; but Mr. Judge Mabane not only refufed to heir my evidence, but to hear any arguments from my attor* ney, Mr. Robert Ruflel, to fupport -my caufe. At a future day judgment was given againft me by the faid Court, zvithout hearing any faid attorney y or saimitting ?ny evidence, I afterwards appealed the caufe ; but upon confiilting my counfel, was obliged to drop my appeal for want of that evidence being admit tea in the faid Court of Common Pleas. •/i « ' :Ot jExtra^ !• ■• ^ ( 149 ) •• J IL Extradi from the Evidence of Mr, Alexander Auldjo, Merchant of Montreal. Anfwer I. In November 1784, when the pe- tition alluded to was figned, I was not in the province, therefore cannot fay by whom or how many it was figned ; but 1 have reafon to believe, ' by a very considerable refpeftable number of Englilh and French, as well in the town as in the -country. Had I been in the province , I Jhould have figned it, as I think it contains nothing that was mt then, and now isJlriSlly true. , . . Anfwer 11. The uncertainty of the laws having In" fufed in the generality of minds a want of confidence in the decifions of the Courts, I have avoided, as much as in my power, bringing caufes before them ; thofe J did were generally fuch as could not admit of uncertainty. In the adtion, myfelf againft Loubet, my advocate Mr. Powell, was in the utmofl uncertainty refpe£iing the event ; hut coin- ciding with me, thai we hadfome chance from the un- certainty of the Court, I ordered him to proceed, and we pre^mled. In the oppofition made by Cartier to the diftribution of Bernard's effbdts I expe- rienced fuch uncertainty and delays, and my ad- vocate, Mr. Davidfon, having declared it im- poflible to fay how or when an end might be put ^o it ; that I was obliged, with his advice to com- L 3 pound Wa ( 15° ) pound with Cartier, to the very great lofs of my conftitiients ; and I do declare, had I not taken that mode, it's my opinion it would not now have been fettled. Anfwer III. Delays and irregularities, as well as the uncertainty of the laws and decifions of the Courts, I have often heard complained of by all the Englifh advocates at the Bar, and by my fellow citizens. In the caufe of J, la Croix againji fr, IVhite^ I have myfelf experienced it, having never been able to get a copy of the judgment y nor do I believe there is any fuch on the regijiers, /., • - ExtraB from the Evidence of Mr. Thonias Foj'Jyth, Merchant of Montreal, Partner in • 'ft : , the Houfe of Robert Ellice and Cq. ? f-.' Anfwer II. I have heard feveral attorneys de- clare, that fuch was the uncertainty of the laws, they could hardly form any opinion on any cafe ; that chance dire£ied in a great meafure the pro* ceedings of the Courts, Extradf from the Evidence of Mr, Jqfeph [' ' Howard, Merchant of Montreal, K«r Anfwer II. MefT. Powell and Walker have repeatedly complained to me of the uncertainty , . .: of < »5i ) of the laws, (particularly Mr. Powell, when I applied to him ft r advice,) and of the mal-ad- minillration of juftice in the Court of Com- mon Pleas of this place ; the Judges, they faid, determined fpmetimes by French, fometimes by Englifli law, and fometimes by a mixture of both, -ui; - ■;■!. ". - ■■"••'1 ■'■■•'■■ ■ri" Extradl from the Evidence of Edward WiU Ham Gray, Efq, Sheriff of the Dijlridt of Montreal, Anfwer VII. A caufe where George Lyons was plaintiff and White defendant, in which this deponent, with Mr. Richard Dobje, as truftees to the eftate of M'Kenny and Caldwell, bank- rupts, were admitted intervening parties, to op- pofe the delivery and payment of a certain fum of money feized and attached in the hands of the faid bankrupts by the faid George Lyons, judgment was given againft the fai,d deponent and the faid Richard Dobie, in their faid quality, contrary to every principle of law, as this deponent conceives and believes, Anfwer IX. and X. John Frafer of London, Efq. afked my opinion, whether Mr. Powell would not be the moft proper perfon to be employed as an attorney or advocate, in his affairs in the Court of Common Pleas, ohfervin^ that he had i''I .'u.' L 4 ' . heard I' ( 'i* ) heard he was favourably attended to by Afr, Jifdgf Frafery and he^accordingly employed him, ,, i' Extract from the Evidente of Richard Dobie, :*! Merchant of Montreal. » v^^ny^^' > Anfwer II. I can fcarce give a ftronger in- ftance than that of my caufe with John Grant againft William Taylor and Co. The judgment given in which, was reverfed in OEiober lafi by Mr, Judge Frafer, with not a little violence of heat and pajfwny and to which the other two Judges, Me£i» Rouville and Southoufe, '^ho had pronounced it, mojl tatnely acquiefced more than feventeen months after the date pf it, when, according to the ordinance of the province for regulating fuch niatters, fo far as Englilh could be underflood^ there could not legally be fo much as an appeal towards getting ;t reverfed by the Superior Court. , The cafe above referred to, of William Kay again ft Pavid M'Crpa, was fully argued before Meir. Frafer and Southoufe, on the Saturday be- fore Mr. Frafer fet out for Quebec, in January 1787. On the Saturday following, Mr. De Rou- ville and Mr. Southoufe were on the Bench, when the plaintiff's council, in the abfence of the de- fendant's (Mr. Powell being then at Quebec) moved for judgment ; but Mr. De Rouville, on that day^ very juftly obferve^ how improper it . ,.u , . . would ( 'S3 ) Would be in him to decide in a caufe in which he had heard no part of the pleadings, that be- ing the firft time it was mentioned before him in Coiirt ; but on the Monday or Tuefday fol- lowing Mr. De Rouvillc and Mr. Southoufe came both into the Court and immediately gave judg- ipent, without hearing a fmgle word on the part of the defendant. I conceive it proper in me to add, that until the introduction of the Coutunte de Paris, in the year 1775, I never heard any complaints touch- ing the admin iflration of juftice ; but fince that period, they have been lotid and frequent, and, in my humble opinion, have arifen from the an- archy and confufion which prevail in the laws and pourts of juftice in ;he province, fpf de- termining of fuits touching the property of his . i>. i '>r .J, ■ • . ":^>-.t APPENDIX. ; I i r-v m ( 154 ) : APPENDIX, No. XVIL IN THE COURT OF APPEALS. Brook Watfon and Robert Rajleigh, and Rajleigh and Others, and fViUiam Goodall^ appel- lants ; AND Simon Frafer fenior. Attorney to Thomas Frank' lirtf Plaintiff below, againft Robert JVilcocks Defendant, on .Execution againft his Real Eftate, RESPONDENT. -iJi il IN APPEAL, Thurjday zijl Feb. 1788. •t . I ■■ i . '•>i'-'*;i ■■'•'■ <{•■' .•,*''* ^^4r < > ^ » w The parties, by their counfel, having been fully heard, it is by the confideration of this Court adjudged, that the judgment by the Court below be reverfed with cofts to the Appellants, to be taxed, and that the Appellants be reftored to, and have, the benefit and preference given by law to the mortgage under which they made oppofition and claim as valid and effedtual in the law. And purfuant to the ordinance of 27th George III. it is fuggefled as the ground of the judg- ment of this Court 5 , «•. i .^ '•.-i i > * A nat ' -A. ( ^5S ) That after the refeiznre of this country by the French crown, on f\jricnder of the Company to whom it had before; been granted, the French King, by his cdidt of 1663, afterwards regiftered at Quebec on the i8th September of that year, placed it under a Sovereign Council in the coun- try, with the cognizance of all caufes civil and criminal, to judge fovereignly, and in the lalt refort, according to the laws and ordinances of his kingdom ; and to proceed, as nearly as might be, in the form and manner pradtifed and main- tained in the jurifdif the Colony confift- ing of fo much of the couvutiie kVz i/aris, divers parts of the Roman law, and the ordinances of the French King, anterior co r.he eii:abli. . . > ,..,. APPENDIX. ( iS9 ) APPENDIX, No. XVIII. ExtraB from the Motion by the Hon. IVilliam Grant, Efq. Member of the Legijlative Coun* cil of Quebec y made in Council April 1784^. I PROPOSE that a Committee of this legif- lative body be named to take into confideration and prepare an humble addrefs to his Majefly in Parliament to requefi that he may he pleafed te inftr tute an AJfembly, or fuch other conftitutional and elec^ tive body, which may reprefent the people of this Prch vincey in fuch manner, form, and in fuch num- bers as his Majefty in his wifdom (hall judge pro- per ; and that this Ajfembly, or EleSlive Body, may he invejled with the ordinary powers of an Englijh Colony Leg{P,ature, And I propofe that the following, among other reafons, be alledged in favour of this addrefs and propofition. .,., . ,^. ^ . I ft. That as the Quebec Bill reftrains the Le- giflative Council from impofing taxes, except thofe which the inhabitants of a town or diftridt may be author ifed to impofe, raife, and apply for making and repairing public roads and build- ings, and for other local conveniencies, oh th s account, ///f;& an AJfembly, or Elective Boay, repre- fenting ( i6o ) fenting the people of this Province, is become abfo-* lutely neeejjary to its prafperity and happinels, as ex- perience has now fully demonftrated that the power delegated to this Legiilative Council relii- ting to taxation, is not fufficient for the public exigences. 2d. That twenty-four years experience prove , that his Majefly's Canadian fubjeSls, expert (as they have al- ways had it in viezv) that the conjiitutional govern- tnent promtfed to them by the Royal Proclamation of OBober 1763, and by the nth fe^ion of the Quebec JB, will be ejlablijloed* 3d. That their hopes of obtaining in due time reprefentatives of their own choice, is probably the reafon that no town or diflridt^has, thus far, defired the aid or authority of this Council to impofe, raife, or apply any tax whatever. On this account, all the public buildings of the Pro- vince, for convenience or fafety, have been fup- ported entirely at the expence of the Crown, though they are at prefent in a very ruinous li- tuaiion, and becoming every day Icfs fit for their original purpofes. • v - 5th. That the power of raifing a revenue for fupplying the wants of Government, and for en- couraging fuch eftablilhments as will promote in- duftry, commerce, agriculture, &c. and to be applied as the Reprefentatives of the People may di- rect^ is as clTcntial to Goverhment as to perfonal ' ; • liberty. ( i6i ) I |9 liberty, and to the natural rights of Britilh fub- • . 6th. That it be further confidered, that as many of his Majefty '3 loyal, but unfortunate, fub- jedls formerly inhabitants of the Colonics, now the United States of America, defire to fettle themfelves in this Province of Quebec, whether a free reprefentation, or other conftitutional efta- blilhment would not be the mod efFedtual means of attaining fuch a defirable objedt — the period is now arrived for putting the laji hand to the formation^ and for permanently fixing the legijlature of this Pro^ vince i and of rendering it thereby ufeful, injlead of being a burthen to the people and crown of Great Bri- tain; let us then humbly intreat his Majefly to embrace the opportunity. - , w 1 r.^ , ^ 7th. The Members of the Legijktive Council being (as it is underfiood) removeable at the pleafure of the Crown, and many of them doubly fo from holding other places of profit and public trufty and no qua-* lification is required by law for fuch perfons as -are named for the Council, but reiidence in the Province. • ^ ^ . .:. : Nine Members ajfembled, being the majority of feventeen, are fufficient to form a Council to tranf- aft bufinefs, it follows, therefore, that five Mem^ berSf with the confent of his Majefty's Governor, can make laws to bind his Majefly's fubjeds in all cafes. 1 M ExtraSl i . I i I ( i62 ) ExtraB from the Protejl of the Hon. Willim ' Grant, Efq. Member of the Legiflative Coun- cil, made in Council, A^ril iyS/)j, .• '\ ,, 'DISSENTIENr, -._,: r^, ,. ;V ':"i'rT'>j«t . I ft. Becaufe he thinks that this Legiflative Council (as it is eilabliihed by the Quebec fi.6i) is not duly qualified to make fuch laws and ordh nances as are abfolutely necejfury to promote the in* tercfts of commerce, the good goveriune^t and the profperity of the Province. r . ; . •-;. 2nd. Becaufe his Majefty*s fubje^s can never enjoy fol'id happinefs under any law for their interr^ nal government, in the framing of which they have not participated by their reprefentatives ele^ed by them/elves. ^ ••. . ^ ^ •, .• s 3d. Becaufe I am convinced that his Majeily's ancient fubjedts will always extend their views and their demands for the performance of his Majefly's promife, folemnly given by his Royal Proclamation of the 7th Odobcr 1765, under the faith wherfeof they left their native country, and fettled in this Province of Quebec. .»*.<">. ^ 5th. Becaufe the Englifh fubjedts have always confidered an ekdive reprefentative body as their birtb-ri^^h, as it forms the balance of power which ( i63 ) rer Ich which fecures liberty, and renders civil fociety mild and agreeable to man. ' " ' ■ . 6th, Becaufe I firmly believey in my confdence, that it is now the interefi of Great Britain generoujly to grant to this Colony, a confiitution and form of Go' Vimment calculated not only to fatify all the tnha- hitantSg but by its benefits, advantages and li- berty, to excite the envy of the New Indepen- dent American States, and to make them regret their reparation from that beneficent Mother Country, of whofe protedtion, humanity and freedom, they had received fo many fignal proofs* ^'^^^ ' '" *»>-.-....;:.... ^.^v . *V ■ i 1 4 : • ' 7th. Becaule / am of opinion, that a free parti- cipation in the. Government is better adapted to mite the fubje^s, to roufe their emulation and to ex- tend and improve their underftanding, than any other form of Government whatever, however mild it may be. ■.'\«r' ^...v- A 8th. Becaufe the principal ufe of this country t6 Great Britain appears to be for the confump- tion of her manufadures, and for fupplying the Weft India Illands with horfes, wood, flour, &c* her European allies with fifh and flour, and her- felf with hemp, lumber, furs, oil, &c. To promote the progrefs of thefe branches of com- merce, it will be neceflary to direft the atten- tion of the people to the great objefts of agri- culture, the fiflieries and trade i and to give vi* G '--i'- ... M 2 gour iy ;( «64 :) gour and life to this great commercial macliinew And I injijl and maintainy that the beji and mojl na-^ tural means ofniakrng it move with fpirit and fuccefsy will he a free government and eUHive reprefentaticn* The power to excite and animate iiiduftry ought to be placed in the hands of thofe perfons who, probably, from their purfuits, are obliged to make mercantile aifairs their principal iUidy and employment. ^firrrV; i>fr?: ^^o-^^it; fi/;:»h:?a! A. ;nob . J "id ^ •::>•:.■ f ... >>»4t .\ . 1 ^ i • i lExtraSt from the Protejt by the Hon, Henry Hamilton Efq, Lieutenant G(wernor of the Province, and Member of the Legijlative Council, made in Council, April 1784 ^ :" ift. The Jiate and circumftances of the Province are totally changed Jince the publication of the Quebec A£li its prefent limits, the independence of it9 neighbours, the eiitabliibment of the loyalifts with their families, in it-^thefe things involve matter for the moft ferious confideration, and re-r quire anfwers to the following queftions 2 Is the Province at prefent in the moft advantageous fi- tuation? Are the laws, the. trade of the Province, :%nd the privileges and liberty of the people, up- on that ^potmg that is moft: likely to excite •:joj. ; M among ( ««5 ) among ft rangers the defire of fettling in it, atid the inhabitants the defire of flaying in it ? . . / will venture to fay, that every pojftble encourage'^ ment ought to be given by Government — the free ex- ercife of religiqn, the advantages which flow from peace, the extenfion of commerce, and the ex- emption, as much as poflible, from taxes, in or- der to mduce a preference of the Britilh Governr ment, and to compenfat? the ingpnveniences gf tjlie climate and Situation, • ? , . -,. ; ' ^m • « -•.►] r i i .--I > ^ ;'v ' ;- . ■ vfc APPENDIX. No. XIX. »; I - i.^-WKii. ». ( „ i i,'- / -'J:, , :>. Exlradt from Ohfervations publi/hed by the Engiyb and French Committees of the Cities • of Quebec and Montreal, with the SignU" tare thereto in February 1785. »jt ■ • I 'i\f , t i NOUS nous attendons qu*il y aura de roppofif tlon a nos addre£[es; tnais elle ne viendra que de la pjurt d^ ceux qui conjidereront plus leurs interets que ceux M 3 du ( i«6 ) (Hu puUic. Lcs changements d'Adminiftration et de Governemcnt font le plus fouvent funeftcs aux perfonncs qui ont des places lucratives^parce- que plufieurs d'elles les ayant obtenues par fa- veur, il leur eft naturel de foppofcr ^ tout ce qui pourroit leur fairc craindre la perte de leurs cm- plois ou de leurs appointements ; c'eft pourquoi, nous vous prions d*examiner notre etat et notre profeffion, et de les comparer k Tetat et a la pro- feffion de ceux qui f'oppoferont a nos addreiTes, et vous jugercz aifement des motifs qui les feront agir. A prefent que nous avons mis notre addrefle ' fous les yeux du public, et que nous lui avons explique toutes nos intentions et nos idees fur les diverfes demandes qu*elle contient, nous foumet- tons le 'tout ^ la refledtion et au jugement de ce public, pour qui nous entendons que feront les avantages de la reforme qu'on demande. Nous n*avotts et nous ite pouvons avoir aucun interet fepare du Jien, dans cette addrejfe nous n* avons cherche que notre bonheur et celui de notre pofterite^ dans k bon^ beur general de la province. Nous le repetons en- core, nous ne demandons ni places ou offices^ ni penfions du Governement, nos demandes font generales et s'etendent a tous les individus de la province, et nous nous croirons fuffifament re- compenfes des peines que nous nous fommes 'v\'. uvsi\^l ;■ ..:',/■>■ .••.\^^: donnc m^ i M (. i67 ) donnc dans cette affaire, fi le bonhcur et la tran- quilite de nos compatr'iotes peuvent en refulter'^. - Signed by all the Members of the Committees. • Tranjlation-^^t expeft that there will be fome oppo- fiiion to our Petitions ; but it will proceed only from thofe who pay more attention to their own private views and in- tereft, than to thofe of the public. P^\ changes in the Go- vernment or Adminiftration are dangerous to fuch perfons as hold lucrative places and pods, becaufe they are mod com- monly obtained by favour ; it is therefore very natural that they Ihould oppofe any thing that may endanger the lofs of th/sir places or appointments. On that account we re* quell you will pay particular attention to our fltuation ia life, and to the profe/Hons we follow^ and compare them with the fituations and profeffions of thofe who may oppofe our Petitions, and you will be able eafily to judge of the motives which influence either party. Having now laid our petition before the public, and having explained all our intentions and ideas on the dif- ferent clanfes of it, we fubmit the whole to the coniidera- tion and judgment of that public for whom all the benefits and advantages of the reform demanded are intended. We have not, nor can we have any views of intereft feparate from the public. In thefe petitions we have fought for our own happinefs and that of our pofterity, in the general happinefs of the province. We again repeat it, that we neither afk pofts, places, or penfions from Government; our requefls are general, and include every individual of the province ; and we Ihall confider ourielves as fufficiently recompenfed for the trouble we have had in this aiFair, if the happinefs, and tranquility of oar fellow fubjeds are thereby more perfectly fecured. M 4 APPENDIX. in i ( i68 ) M. ii' I H' .t. "i*iU» > APPENDIX. No. XX. To fcw Excellency the Right Hon. Guy Lord Dorchefler. . • [Humhly Sheweth^ ■....; THAT at a public meeting of the citizens of Quebec and Montreal refpedtively, held in the fall of the year 1784, a Committee from their number was chofen, for the purpofe of frauiing and conducting Petitions to his Majefty, and to both Houfes of Parliament, which Petitions were dated in November of that year, and iigned by upwards of two thoufand three hundred old and new fubjejd whofe fentiments and w'ljhes are Jiill the fame^ are more than double in number y and not lefs refpe^able, than the petitioners of the iph of Oclober lajl, in point of loyalty, wealth, character, and knowledge of the true interejls of this Province^ 1. .- ; u: i? v , That the agent of the faid Petitioners of 1784, in carrying forward their Petition to the notice and difcuffion of Parliament, was not guilty either of temerity or injuftice in prefenting himfelf in the name of, and as agent for, thofe petitioners, being unanimoully chofen and emp.6wered for that purpofe by the Englifh and Canadian Com- mittees, reprefenting the whole body of Peti- tioners, whether old or new fubjedts. .1 ■ ^. > Your Memorial ifts beg leave to obferve to your Excellency, that many of the Petitioners of the 13th Odober laft, did, in a Petition to the Throne in the year 1783, complain of the adual legiflature in a more pointed manner than is fee forth in our Petition of 1 784, yet they do not now afl^ for any reform in the prefcnt fy ftem of govern* ment ; but prefer a diftindtion among his Majef- :::y c .: ' ty*s C 17' ) (( ss i( (S ty's fubjcfts ; notwithftanding that in the aforc- faid Petition of 1783, they pray, '* that whatever " form of government it fhall pleafe his Majcfty ^.* to eftabliih in this Province, they may be ad* mitted freely, and without diftindion, to par* ticipate in the precious rights and privileges which his Majefty's fubjedts enjoy, in what- ever part of the empire they are fituated." Tour Lordjhip being fully fenfible that Britiflj fubjeSls, confider as one of their mojl valuable privileges , the right of being reprefented in the legijlature, your Pe- titioners humbly conceive, that to them it more properly belongs to remark, that to refufe them this didinguilhing privilege, implies a doubt of that loyalty and attachment which they have never ceafed to demonflrate. Your Memorialifts yield with reludtance to a ncceflary part of their duty, in remarking to your Lordfliip, with all due refpedt, that in the lijl of their opponents appear the names of Judges^ Counfel^ lorSf and others^ in the enjoyment of penjions and places of profit under the p^efent fyjiem of government^ to the amount of two thoufand feven hundred and forty-five pounds, upon which circumdance they forbear to comment. That in the faid lift, particularly among the feigniors, the names offome appear who are not feigniors^ and of others who have affumed titles to which they are found to have no preteniions ; we fubmit to your Lord- • ; . ihip ( 1 7^ > fhip what weight pcrfons of thofe defcriptioris, ought juftly to have in the prelcnt cafe. " ■' ^ That the Petitioners of the 13th Oftober lafl:, having reprefented themfelves to his Mnjefty," and to your Lordlhip, as the great proprietors or principal landholders in this province, your Mc- morialifts think it incumbent on them to ftate to your Lordfhip, from the beft information they can procure, an account of all the feigniories in Canada, (thofe of his majefty and the religious communities excepted) wirh an eftimate of their annual value, Vv^hich is hereunto annexed, and humbly fubmitted to your Lordlhip's, knowledge and information. By the aforefaid eftimate, yonr Lordfliip will obferve, fbat the annual revenue of the feigniories, in the poJjeJTwn of his Majejly*s ancient fubjects, exceeds the fum of ten thoufand founds. 'That the feigniories pojfejfed by his Majejly\s netvt fubjects^ who have not joined in the petition of the 15th Oftober laft, are computed at the yearfy income of eight thoufand eight hundred and ninety- five pounds, whilft the feigniories belonging to the fubfcribers to that addrefs do not amount in annual revenue to fix thoufand pounds i from this compara- tive ftiitemcnt, which vour memorialifts have reafon to confider as free from error as the na- ture of the enquiry will admit of, your Excellency may judge how far the Petitioners of the 13th October lalt are entitled to that pre-eminence '• * which t^^n sk X 173 ) which they claim, and if the real and perfonal cftates of all the other Petitioners of 1784, could -be thus contrafted with thofe of their opponents, the great fuperiority of the former would be ftill more evident and ftriking, efpecially as the commercial property in this province, whether belonging to the merchants of Great Britain or Canada, is almoft wholly reprefented by the Pe- titioners of 1784, an eftimate of which was fub- mitted to the Honourable Legillative Council in their feifion of 1787, amounting to the fum of one ntillhn two hundred and forty-Jx thou/and and twenty' three pounds fjixjhillings and eight-pence. Your Me- morialifts beg leave further to add, that the ex- tenfive an4 valuable poffeflions of the numerous loyalifts and others lately fettled in this province, and which are daily encreafing, are not reckoned and comprehended in any of the foregoing efti- mates. That the oppofition made by the petition of the 13th of Odober laft, to that of November, 1784, being thus founded on mijlaken principles^ and on fuppofed faHs which do not exiji, muft ne- cellarily lofe that weight which it might other- wife have had, by the fandion of fome refped- able names. Your Petitioners therefore unite with their Opponents in praying, that your Lordjhip will he pleafed to report and chara^erife both parties in fuch a manner X J74 ) a Maimer as will Jbew to our moft gracious So* vereign, and the Britilh Parliament, the true ttn-> porfancef pojfejjions^ and interefis, of the one and the other* I :'■••'. '.- lii'i, V.S1/ ill ' • ) >i ;./t}';i jj:j-' ': ^y. ''.i And your Petitioners, as Li diity bound^ 'r)'^>?«l,/ will ever pray, &c. &c» : : I^" --^rr - Montredti ifi December 1788. ^ieheCy ^th December 1788. i iV. i-Ji iwi *^1 • J«i..^.. ,h / Signed by the Englifh aqd French Com- mittees of the Cities of Quebec and Mon* treal. i < ' ■ \ .» J, J / , -..'i ,■'5^.^l.■^ , Yj «.. ,. , , . ,. .. ■ ., .... ••...Kt _..•,. -V* t.jm. . .1. t: ■ 'T 1 - - -I / i 'ii.l. 1 • > f ,^ f. .-» ... *,<. /■ .'■» *" > . ; 1 . t ' '• 4 ( .1 j;iJ; '\'i \.\s . -v \ \ V ',' 't ,'Ui v*v IH.» .' • > V t '»• ■» iVi- li "V,,-,iC fcl: .f •■♦ • 1 : J I i' Anezv A p»\r^ iA he ,} 1- ( m ) ■ ^ «^ry Method of procuring Signatures to Per- , ^ titionsy praBifed by the Promoters of the : Counter Petitions in the Province of Quebec. [ K ; J i i ' jt ! In t J J !• *j ' l^.njii^iui ^-t,l PARDEVANT le notaire publique refidant au bourg de Boucherville Soufigne, le dix neuf Decembre apres midi, a etc convoquee et aflem- blee la nobleffe, des bourgeois et habitans de la paroiffe de Boucherville, lefquels ont unanime- ment dit et declare, que ne pouvant pas fe tranf- porter a Montreal, pour approuver par leurs fig- natures, TaddrefTe faite a fa Majelle, determinee a Montreal le feize du prefent mois, tendante au maintien de nos loix civiles, et a ce que le libre exercice de la religion catbolique, foit laifle tel, et ainfi que nous avons joui de ce droit avant la conquete de cette Province; nous chargeons Monfieur de Boucherville de figner pour nous, promettant avoir le tout pour agreable, fait et pafle au bourg de Boucherville Tan mil fept cent quatre vingt quatre, le dix neuf Decembre, et ont fignes apres lefture faite fuivant l*ordon- nance. REMAR^UES. I mo. La procuration eft paflee le 19 Decembre. Monfitur St. Ours prouve que Taddreffe de Top- pofition n'a ete redigee que le 23. Avaijt ce terns 11 n'etoit pas queftion d'y inferer Toppo- fition t r»76 ) ppuvpii:.-e„.figoaj,tlim article dontil n^eft point »it mention dans cette procuration. Mon Tju ol ^^tvQurw -ii CT JJOli Of) -n- ■f;Ovj r/n "Afrt* f . •i; ■.^ c jU ^iJL ,^htV' . f bma 5!:j '■!'(i:.il':^i znn ^rjj mi 7^t i -■<>r« ;>"t i', C). :•! •f f r* n t r^fe*** «» ■/•i-iii i J jI.^ jfl t f> Boib <: - 1 £.'1^ 1 t^>7:j:^a nnofr^ 'rr,' 'il 'jI rrt t 'f ■ hnrr f',Fi ?t ^l F I N I S. f/:;i: ■[ ,a -:>iDi:*zo ;-> ^3 )iwc(_enov^£;jofr2'i/n firtfi ..c •JJO «t » '''f ^■ ■■/' . ^1 yj ■J.' »ii :>> '!"'?' *» f o'bniyibfbr/c .^ looitnoM .^ L-G€| 3t/0l ■:ii'^:> 3oti lull r;:i zllhndouoE d1> muad vu m 1 :£■( n ,5 «r nCtv'IO. >Iii:7';.x ;,j;j,^ STXjfel 1 fti'ifJu 2: 'JBi'i f> !no ^-ui.il d'^J »'i,*!V; '•♦•t*^*. **'»•• f? v-ILWlE^ r>%.'i. <^L -A ^i^llBq^Ih iioiWiuomcinJ. .o:n t ^qo i ->:> L':iti-?bf;f/l itJ^%*4iso^ twO^^ tu^iindi 5'j :J4ii./A t.'i>f sap eiBtiiOi i;^ ^'^ f :«> i:6M 'a I t t-ti.: i ■ -.^^ '■'^•' \ ^:, „ J V 4-