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6-7 EDWARD VII. SESSIONAL PAPER No. 18 A. 1907
DOCUMENTS
RELATING TO
THE CONSTITUTIONAL HISTORY OF CANADA
6-7 EDWARD VII. SESSIONAL PAPER No. 18 A. 1907
CANADIAN ARCHIVES
at
DOCUMENTS
RELATING TO
THE CONSTITUTIONAL HISTORY OF CANADA
1759-1791
Selected and Edited with Notes by ADAM SHORTT
AND
ARTHUR G. DOUGHTY
Printed by Order of Parliament
SECOND AND REVISED EDITION BY THE HISTORICAL DOCUMENTS PUBLICATION BOARD
PART II
OTTAWA
PRINTED BY J. de L. TACHfe. PRINTER TO THE KING'S MOST
EXCELLENT MAJESTY
1918
TLli Ax
6-7 EDWARD VII. SESSIONAL PAPER No. 18 A. 1907
THE HISTORICAL DOCUMENTS PUBLICATION BOARD
ADAM SHORTT, Chairman
ARTHUR G. DOUGHTY, Dominion Archivist
HON. THOMAS CHAPAIS, Legislative Council, Que.
PROF. CHARLES W. COLBY, McGill University PROF GEORGE M. WRONG, University of Toronto
/
CONSTITUTIONAL DOCUMENTS 583
SESSIONAL PAPER No. 18
CARLETON TO DARTMOUTH. ^
(N°. 1.)
Duplicate. Quebec 23^^ Sept' 1774.
My Lord ! I take the first Opportunity that offers of acquainting your Lordship with my Arrival here the IS**" instant, where I have had the Satisfaction of finding His Majesty's Canadian Subjects impressed with the strongest sense of The King's great Goodness towards them in the late Act of Regu- lation for the Government of this Province; All Ranks of People amongst them vied with each other in testifying their Gratitude and Respect, and the Desire they have by every Mark of Duty and Submission to prove themselves not undeserving of the Treatment they have met with —
4:4:4:* *****
I am with much Esteem and Respect Your Lordship's
Most Obedient and Most Humble Servant
GUY CARLETON Earl of Dartmouth
One of His Majesty's
Principal Secretaries of State.
EXTRACT OF A LETTER FROM GENERAL GAGE TO GENERAL CARLETON DATED BOSTON SEPTr. 4th, 1774.2
"The present Situation of Affairs in this Province obliges me to collect "all the Force in my Power ; I have therefore sent Transports for the lO*'^ "and 52'^ Regiments to bring them to this Place, at the same Time I submit "to you, whether you think any Thing is to be dreaded from the Absence "of these Corps, internally in the Province of Quebec during the Winter ; "for as these Regiments will come down the River so late in the Year, and "may be replaced early in the Spring, I imagine no Danger can be appre- "hended from without. If therefore you think the Fusileers at Quebec, and "the Part of the 26**^ at Montreal, with small Detachments from them at "Trois Rivieres and Chambli, can preserve Peace and good Order in the "Province, I am to beg you will order the 10*'' and 52'^ Regiments to embark "without Delay on board the Transports, for you will think with me they "will have no Time to spare in coming down the River St. Laurence.
"As I must look forward to the worst, from the apparent Disposition "of the People here, I am to ask your Opinion, whether a Body of Canadians
' Canadian Archives, Q 10, p. 120. After the passing of the Quebec Act, Carleton left early in July to resume his position as Governor of the enlarged Province of Quebec under its new constitution.
2 Canadian Archives, Q 10, p. 122. This was sent as an enclosure with the previous despatch, and is one of numerous documents showing immediate preparation on the part of the EngHsh authorities, after the passing of the Quebec Act, to make use of the Canadians and Indians in connection with the colonial troubles to the south.
584 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
"and Indians might be collected, and confided in, for the Service in this "Country, should matters come to Extremities ; and on what Plan, and "what Measures would be most efficacious to raise them, and for them to "form a Junction with the King's Forces in this Province ?"
G.C. Endorsed : — Extract of a Letter from
General Gage to General Carleton dated Boston Sepf 4"^ 1774.
In Governor Carleton's of the 23 'd Sept' N° 1
EXTRACT OF GENERAL CARLETON'S ANSWER TO GENL GAGE DATED QUEBEC 20th SEPTr 1774.^
"Your Express reached this Place yesterday Evening, about twenty "Hours after my Arrival ; Pilots are sent down the River, the lO*** and 52°"* "shall be ready to embark at a Moment's Notice, and as you directed" —
"The Canadians have testified to me the strongest marks of Joy, and "Gratitude, and Fidelity to the King, and to His Government, for the late "Arrangements made at Home in their Favor ; a Canadian Regiment would "compleat their Happiness, which in Time of Need might be augmented to "two, three, or more Battalions, tho' for the Satisfaction of the Province, "and 'till the Kings Service might require more, one would be sufficient, and "I am convinced their Fidelity and Zeal might be depended on; should this "Measure be at length adopted (which I have long since Recommended)^ "'tis essentially necessary their Appointments should be the same as the rest "of the Infantry, with half pay, in Case they should be reduced ; the "Savages of this Province, I hear, are in very good Humor, a Canadian "Battalion would be a great Motive, and go far to influence them, but you "know what sort of People they are" —
G. C. Endorsed : — Extract of General Carleton's Answer to General Gage - dated Quebec 20t»' Sept' 1774. In Governor Carleton's of the 23*1 Sepr. N° 1
1 Canadian Archives, Q 10, p. 123. This was also enclosed in Carleton's despatch of 23rd Sept.. 1774.
' See, among others, his letter to Gage of Feb. 15th, 1767; p. 280. Also his letter to Shel- burne of Nov. 25th, 1767; p. 281.
CONSTITUTIONAL DOCUMENTS 585
SESSIONAL PAPER No. 18
DARTMOUTH TO CARLETON.^
Whitehall 10*'' Dec' 1774 Governor Carleton Sir, I have received your Dispatch of the 23** of Sepf acquainting me with your Arrival at Quebec, and that you found His Majesty's Canadian Subjects impressed with a just Sense of His Majestys Goodness to them, and highly satisfied and pleased with the Regulations adopted for the future Government of the Colony —
As you are silent as to the Sentiments of His Majesty's Natural born Subjects in Canada respecting the late Act, I am not at liberty to conclude that they entertain the same opinion of it, but the King trusts that when the Provisions of it have taken place and His Majesty's gracious Intentions with respect to the Plan of Judicature'^ that is to be established are well known, prejudices which popular Clamour has excited, will cease, and that His Majesty's Subjects of every description will see and be convinced of the Equity and good Policy of the Bill.
It will be your Care, Sir, at the same time you express to the King's new adopted Subjects His Majesty's gracious approbation of the Affection and Respect they have shewn for His Government, to endeavour by every Argument which your own good sense will suggest to you, to persuade the natural born subjects of the justice & propriety of the present form of Government and of the attention that has been shewn to their Interests not only in the adoption of the English Laws, as far as it was consistent with what was due to the just Claims and moderate. Wishes of the Cana- dians, but in the opening to the British Merchant, by an Extension of the Pro- vince, so many new Channels of important Commerce.
You will have seen, by the public Prints, that Mr. Hey has been elected for Sandwich in the new Parliament and will naturally conclude that he has no Intention of returning to Quebec ; but I have the Satisfaction to
1 Canadian Archives, Q 10, p. 125.
* It was intended to furnish an ordinance for the establishment of courts in Canada and send it out to be enacted by the Council. Two plans were proposed, as we learn from a paragraph in Under Secretary Pownall's note to Lord Dartmouth of July 17th, 1774. "I have also conversed with Mr. Hey on the Plan of judicature for Quebec he thinks my plan will do as well as his I am convinced his ought to be preferred; we both agree that anything that falls short of, goes beyond, or halts between either will be improper." M 385, p. 425. Of these only the one by Hey appears to have been actually drawn out, as we learn from Hey's letter to Dartmouth. "My Lord — I did myself the honour to call at your Lordships house with the draught of an Ordinance for establishing Courts of Justice at Quebec, and thro'out the Province, which I most sincerely wish may have the good fortune to be better thought of by your Lordship than I will freely confess it is by the author of it — without any affectation of modesty which appears to me as bad as any other sort of affectation, I must own it is a work beyond my abilities & somehow or other I have had the ill luck to have had very little assistance in it except from Mr. Jackson indeed not any. & He is at present much taken up with the business of the Court of Chancery." M 385, p. 490. The draught of an ordinance here referred to, is the one given in the same volume, at p. 373, and endorsed, "Epitome of a proposed Ordinance for establishing Courts of Justice in the Province of Quebec." The complete ordinance as drawn is given below, p. 637.
586 CANADIAN A RCHI VES
6-7 EDWARD VII., A. 1907
acquaint you, that is not the case, and that he is resolved to return to Quebec in the Character of Chief Justice although he should be under the necessity of relinquishing his Seat in Parliament which however we hope and think may be avoided, and I mention this with the greater Pleasure, knowing how great a satisfaction it must be to you to have his advice and opinion upon the many important Objects that remain to be provided for.i
It is very much to be wished that the season of the Year would admit of his being the Bearer of your Commission and Instructions, and of the Notifications of His Majesty's Pleasure with regard to the Variety of Arrange- ments which are to be made ; but as that cannot be, I propose to send them to you by the next New York Packet under cover to Lieut Gov' Colden, with Directions to him to see them conveyed to you from New York by a proper Messenger and with all possible Dispatch.
I am &c*
DARTMOUTH. Endorsed : — Dra* to Gov'' Carleton
10*'^ December 1774
CARLETON TO DARTMOUTH .2
(N°. 3.)
Quebec 11*^ November 1774.
My Lord ! — Soon after my Arrival here, I informed Your Lordship of the Gratefull Sense, The King's Canadian Subjects, in this Part of the Province entertained of the Acts of Parliament passed in their Favour during the last Session ; those more remote have since, in all their Letters and Addresses, expressed the same Sentiments of Gratitude and Attachment to His Majesty's Royal Person and Government as well as to the British Interests.
The most respectable part of the English residing at this Place, not- withstanding many Letters received from Home, advising them to pursue a different Course, likewise presented an Address expressive of their Wish to see universal Harmony and a dutifull Submission to Government con- tinue to be the Characteristic of the Inhabitants of this Province, and assuring me, that nothing should be wanting, upon their Parts, to promote so desirable an End ; I believe, most of those, who signed this Address, were disposed to act up to their Declaration, which probably would have been followed by those, who did not, if their Brethren at Montreal had not adopt- ed very different Measures.
Whether the Minds of the latter are of a more turbulent Turn, or that they caught the Fire from some Colonists settled among them, or in reality Letters were received from the General Congress, as reported, I know not ;
1 Wm. Hey returned to Canada as Chief Justice in April, 1775. * Canadian Archives, Q 11, p. 11.
CONSTITUTIONAL DOCUMENTS 587
SESSIONAL PAPER No. 18
Certain it is however, that shortly after the said Congress had published in all the American Papers their approbation of the Suffolk County Resolves^ in the Massachusetts, a Report was spread at Montreal, that Letters of Importance had been received from the General Congress, all the British there flocked to the Coffee House to hear the News, Grievances were publicly talked of, and various Ways for obtaining Redress proposed, but that Government might not come to a true Knowledge of their Intentions, a Meeting was appointed at the House of a Person then absent, followed by several others at the same Place, and a Committee of four Named, consisting of Mr. Walker, Mr. Todd, Mr. Price, and Mr. Blake, to take Care of their Interests, and prepare Plans for Redress.
Mr. Walker, whose Warmth of Temper brought on him, some Time before my Appointment to this Command, the very cruel and every Way unjustifiable Revenge,^ which made so much Noise, now takes the Lead, and is not unmindful of his Friend Mr. Maseres upon the Occasion.
Their Plans being prepared, and a Subscription commenced, the Committee set out for Quebec, attended in Form by their Secretary, a Nephew of Mr. Walker's, and by Profession a Lawyer ; immediately upon their Arrival here, their Emissaries having prepared the Way, an Anonimous Summons was posted up in the Coffee House for all the British Subjects to meet at a particular Tavern, and a Messenger sent round with a verbal Notice to such as might not have seen the written Summons ; At this first Meeting a Committee of seven, consisting of Mr. John Paterson, since gone to London, Mr. Zachariah Macaulay, Mr. John Lees Senior, said to intend going Home this Fall, Mr. John Aitkin, their Treasurer, Mr. Randal Meredith, Mr. John Welles, and Mr. Peter Fargues, was appointed to prepare and adjust Matters with those of Montreal ; several discreet People at this Place and Montreal declined attending those Meetings, as soon as they discovered what they aimed at.
There have been several Town Meetings since, as they are pleased to stile them, and Meetings of the joint Committees, at which, tis said, they have resolved to write Letters of Thanks to the Lord Mayor and Corporation of London,' to some of the Merchants in the City, and to Mr. Maseres, for having taken the Province under their Protection, and praying a Continu- ance of their zealous Endeavours in so good a Cause ; they intend a hand- some Present in Cash to Mr. Maseres, with the Promise of a larger Sum, in Case he succeeds ; Petitions are likewise to be presented to The King, to the Lords, and to the Commons,^ but of all this I speak doubtfully, as they have taken uncommon Pains to keep their whole Proceedings from my knowledge.
^ These were adopted on Sept. 9th, 1774.
' The chief documents dealing with the Walker outrage are given in the "Report on Can- adian Archives," for 1888, p. 1.
' "On the 22nd of June, the Lord Mayor, attended by several aldermen, the recorder, and upwards of one hundred and fifty of the common council, went up with an address and petition to the King, supplicating his Majesty not to give his assent to the bill." Cavendish "Debates," &c. Preface, p. IV.
* These petitions were presented and are given immediately following this despatch.
588 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
This much however is certain, that the Canadians feel some Uneasiness at these Proceedings ; they are surprised that such Meetings and nocturnal Cabals should be suffered to exert all their Efforts to disturb the Minds of the People by false and seditious Reports, calculated to throw this Province into the same Disorders that reign in other Parts of this Continent; They express some Impatience and Indignation at being solicited to join in such Proceedings, and are not without their Fears, that some of their Countrymen, under the Awe of menacing Creditors, and others, from Ignorance, may have been induced to put their Hands to a Paper, which, they are assured, is intended to secure their Lands and Property, and take from the Governor the Power of seizing them to his own Use, or sending them and their Families up the Country among the Savages, or waging War, at his own Pleasure, upon the Bostonians ; in short to relieve them from the Oppressions and Slavery imposed upon them by those Acts of Parliament; They are the more apprehensive these and such like Reports may have had Effect upon some weak and ignorant People, that from the Precision necessary in the Translation, the Acts themselves have not as yet been promulgated.
I have assured the Canadians, that such Proceedings could never affect the late Measures taken in their Favor, nor did I believe, they ever would succeed with Government upon any Occasion, so that they might remain in perfect Tranquility upon that Account; Notwithstanding my thorough Conviction, of the Assurances, I have given them, and that all these Town Meetings, all the Reports, breathing that same Spirit, so plentifully gone forth through the neighbouring Provinces, can for the present only excite a trifling and momentary Agitation, I cannot but Regret, such Examples should be set the People of this Province, and think, Government cannot guard too much, or too soon, against the Consequences of an Infection, imported daily, warmly Recommended, and spread abroad by the Colonists here, and indeed by some from Europe, not less violent than the Americans.
I am informed, all Persons from Boston for Canada are searched for Letters, and strictly examined, if they have any verbal Message from General Gage for me, so that I am not likely to hear from the General, before the Navigation opens next Summer.
I am with much Esteem and Respect
Your Lordship's
Most Obedient and Most Humble Servant
GUY CARLETON Earl of Dartmouth
One of His Majesty's
Principal Secretaries of State.
CONSTITUTIONAL DOCUMENTS 589
SESSIONAL PAPER No. 18
PETITIONS FOR THE REPEAL OF THE QUEBEC ACT.^
TO THE KING'S MOST EXCELLENT MAJESTY.
THE PETITION of your Majesty's most loyal and dutiful your ancient Subjects settled in the Province of Quebec,
MOST HUMBLY SHEWETH
THAT We upon the Faith of your Sacred Majesty's Royal Proclam- ation bearing Date the Seventh Day of October which was in the Year of Our Lord One thousand seven Hundred and Sixty three Did come and Settle ourselves in the said Province purchasing Houses and Lands and carrying on extensive Trade Commerce and Agriculture whereby the Value of the Land and Wealth of it's Inhabitants are more than doubled during all which Time, We humbly crave leave to say that we have paid a ready and dutiful Obedience to Government and have lived in Peace and Amity with your Majesty's new Subjects. Nevertheless we find and with unutterable Grief presume to say that by a late Act of Parliament intitled "An Act for the making more effectual Provision for the Government of the Province of Quebec in North America" We are deprived of the Fran- chises granted by Your Majesty's Royal Predecessors and by us inherited from our Forefathers That We have lost the Protection of the English Laws so universally admired for their Wisdom and Lenity and which we have ever held in the highest Veneration and in their Stead the Laws of CANADA are to be introduced to which we are utter Strangers disgraceful to us as Britons and in their Consequences ruinous to our Properties as we thereby lose the invaluable Privilege of trial by juries. THAT in Matters of a Criminal Nature the Habeas Corpus Act is dissolved and we are Subjected to arbitrary Fines and Imprisonment at the Will of the Governor and Council who may at Pleasure render the Certainty of the Criminal Laws of no Effect by the great Power that is granted to them of making Alterations in the same.
* Canadian Archives, Q 11, p. 98. This is also given in Maseres' "An Account of the Pro- ceedings" &c., p. 239. Only the petition to the King is given in the State Papers, but those to the Lords and Commons are also given by Maseres. The British element in the Province, for the most part, on learning the nature of the Quebec Act, which deprived them of the protection of the writ of Habeas Corpus and of trial by jury, under the restored French Law, set about procuring petitions for its repeal or amendment. They formally appointed Maseres as their agent in London, and to him they sent the three petitions to the King, Lords, and Commons. "These petitions were received by Mr. Maseres about the 12th or 13th of last January, 1775; and the first of them, that to the King's majesty, was delivered by him to the Earl of Dartmouth, his majesty's secretary of state for America, on the 18th of the same month; and those to the House of Lords and House of Commons were some time after delivered to the Lord Camden and Sir George Savile, who, approving the contents of them, undertook to present them to their respective houses of parliament." "An Account of the Proceedings," &c., p. 238.
590
CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
WE therefore most humbly implore your Majesty to take our unhappy state into your Royal Consideration and grant us such Relief as your Majes- ty in your Royal Wisdom shall think meet.
And your Petitioners as in Duty bound Will ever Pray.^
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Quebec 12*'' November 177^ |
L |
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Zachary Macaulay |
Edw"* Manwaring |
Dav"^ Salesby Franks |
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John Aitkin |
Michael Flanagan |
John Richardson. Jun' |
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o n |
J°° Paterson |
J. Melvin |
James Leach |
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3 |
1^ o r \ |
Randle Meredith |
Geo. Munro |
Ezekiel Solomons |
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a |
John Lees |
Ja^ Hanna |
James Perry |
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C |
John Welles |
Joseph Torrey |
J. Beek |
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^S. Fargues |
Tho^ Walker, jun'' |
Lawrence Ermatinger |
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John McCord |
Ja' Dyer White |
Simon McTavish |
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Chas. Grant |
J°° Bell |
J. Pullman |
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Robert Woolsey |
Andrew M'Gill |
James Frazer |
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Nicholas Bayard |
Sam: Holmes |
G. Young |
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John Painter |
James Blake |
Will"' Ashby |
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Thomas McCord |
James Noel |
Gavin Laurie |
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Henry Grebassa |
Thomas McMurray |
Phill. Brickman |
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Robt. Willcocks |
Allan Paterson |
Benj. Holborn |
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John Renaud |
James Symington |
Joseph Borrel |
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Christy Cramer |
Abram Holmes |
John Connolly |
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Geo: Gregory |
John Neagle |
John Durocher |
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Lewis Chaperon |
Peter Arnoldi |
B. Janis |
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Frederick Petry |
Dan' Robertson |
J. Joran |
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James Cuming |
Alex^ Milmine |
Jacob Maurer |
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William Laing |
Tho^ Eraser |
Simon Levy |
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George Jenkins |
A. Porteous |
Edward Chinn |
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Francis Smith |
Joseph Ingo |
Rich^ McNeall |
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Alexander Wallace |
Adam Scott Ja^ Finlay |
Robt. Cruickshanks John Comfort |
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Thomas Walker |
Pat McClement |
Adam Wentsel |
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"rt |
James Price |
W"" Pan tree |
Allan McFarlain |
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John Blake |
Jacob Bittez |
Jacob Vander Heyden |
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o |
£ |
Isaac Todd |
Leach Smith |
Hinrick Gonnerman |
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o U |
Alex'' Paterson |
John Saul |
John Hare, Jun'' |
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J"° Porteous |
Francis Anderson |
Geo. Wright Knowles |
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Rich'd Dobie |
Simon Eraser |
Benj" Frobisher |
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Geo. Measam |
John Ross |
W'" Murray |
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Sam' Jacobs |
John McCluer |
Ja* Anderson |
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Nicholas Brown |
James Woods |
John Trotter |
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Michl. Morin |
John Lees |
Christ. Chron |
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William Kay |
Lemuel Bowles |
Will'" England |
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John Lilly |
Thomas Davidson |
Meshach Leeng |
■The spelling of the names has been revised from the lists as given in "An Account of the Proceedings," &c., pp. 241, 248, 258.
CONSTITUTIONAL DOCUMENTS
591
SESSIONAL PAPER No. 18
John Sunderland J. Grant James Morrison Ja' Sinclair John Chisholm James Jeffry Robt. McFie Francis Atkinson David Shoolbred Jonas Clarke Minot Godfrey King George Davison George King John Lynd Caleb Thorne John Lees, jun'' Robt. Jackson Hugh Ritchie Alexander Lawson Charles Dailey Lazarus David D. Bouthillier Rich^ Walker (Original)
Patrick O'Donell Arch*^ Lawford Simon Eraser Jun'' Rich"^ Vincent Daniel Cameron James Galbraith Roderick McLeod John White Swift John Bondfield Will: Callander Da-^ Geddes Sam' Morrison John Thomson Alexander Hay Ja* Doig Joseph Bindon Andrew Hays Geo: Singleton J"?" Stonhouse John Kay Josiah Bleakley Aaron Hart Levy Solomons
Rec'', 22*^ January 1775.
Thomas Boyd John Mittleberger Solomon Mittleberger Isaac Judah Peter Mcfarlane Ja^ May Jacob Schieffelin Benaiah Gibb John George Walk Michael Phillips C. Dumoulin Francois Dumoulin Duncan Gumming William Haywood Johan Nikal Sein Mann Robt. McCay Charles Le Mardert James Robinson Jean Bernard Alex"" Fraser Malcolm ffraser John McCord Jun'' Henry Dunn
PETITIONS TO THE LORDS. ^ "To the Lords Spiritual and Temporal in Parliament assembled,
"The Petition of his Majesty's loyal and dutiful his ancient Subjects "settled in the Province of Quebeck,
"Humbly sheweth,
"That since the commencement of civil government in this province, "your lordships' humble petitioners, under the protection of English laws "granted us by his sacred majesty's royal proclamation, bearing date "the seventh day of October, which was in the year of our Lord one thousand "seven hundred and sixty-three, have been encouraged to adventure their "properties in trade, estates and agriculture, to a very considerable amount, "thereby rendering the province a valuable acquisition to Great-Britain : "That, to their inexpressible grief, they find, by an act of parliament "intitled, An act for making more effectual provision for the government of "the province of Quebeck in North- America,'' they are deprived of the habeas "corpus act and trials by juries, are subjected to arbitrary fines and impri- "sonment, and liable to be tried both in civil cases and matters of a criminal "nature, not by known and permanent laws, but by ordinances and edicts "which the governour and council are impowered to make void at their will "and pleasure, which must render our persons and properties insecure, and
1 "An Account of the Proceedings," &c., p. 246. This bears the same signatures as the peti- tion to the King.
592 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
"has already deeply wounded the credit of the country, and confined our "views in trade to very narrow limits.
"In this cruel state of apprehension and uncertainty-, we humbly implore "your lordships' favourable interposition, as the hereditary guardians of the "rights of the people, that the said act may be repealed or amended, and "that your humble petitioners may enjoy their constitutional rights, privi- "leges and franchises heretofore granted to all his majesty's dutiful subjects,
"And your petitioners, as in duty bound, will ever pray. "Quebeck, 12th Nov. 1774."
PETITION TO THE COMMONS.^ "To the Honourable the Commons of Great-Britain in Parliament assembled.
"The humble Petition and Memorial of his Majesty's ancient Subjects "the Seigneurs, Freeholders, Merchants, Traders, and others settled in "his Majesty's Province of Quebeck,
"Sheweth,
"That, under the sanction of his majesty's royal proclamation, bearing "date the seventh day of October, in the year of our Lord one thousand "seven hundred and sixty-three, which graciously promises to all persons "inhabiting in, or resorting to, this province, his royal protection for the "enjoyment of the benefit of the laws of therealm of England, until assemblies "should be called therein, they did come and settle themselves in this "province, having entrusted their own properties, as well as very consider- "able sums of their friends, in goods and merchandize, from Great-Britain, "and entrusted the same into the hands of the Canadians, as well for the "purpose of internal trade in the province, as for outsets in carrying on the "trafiick of furs and peltries in the Indian countries and fisheries below "Quebeck, many of them having purchased lands and houses, and been "employed in agriculture, and the exportation of grain and other produce "to foreign markets, to the great benefit and emolument of the said pro- "vince, which has flourished chiefly by the industry and enterprising spirit "of the said subjects, who, under the protection of British laws, and by the "assistance of annual supplies of British manufactures, and other goods and "merchandize obtained upon credit from the merchants of Great-Britain, "have been enabled to carry on at least four parts in five of all the imports "and exports which are principally made in British bottoms, the latter "consisting of furs, peltries, wheat, fish, oil, pot-ash, lumber, and other "country produce : and for the more convenient carr^'ing on the said trade "and commerce, they have built wharfs and store-houses at a very great "expense, insomuch that the property, real and personal, now in British "hands, or by them entrusted to Canadians at a long credit, is one half of "the whole value of the province, exclusive of the wealth of the different "communities ; which your petitioners have in part set forth in the humble "petition to his most excellent majest\', dated at Quebeck the thirty-first "day of December which was in the year of our Lord one thousand seven
1 "An Account of the Proceedings" &c., p. 254. This also bears the same list of names as the other petitions.
CONSTITUTIONAL DOCUMENTS 593
SESSIONAL PAPER No. 18
"hundred and seventy- three ;^ humbly praying, that he would be graciously "pleased to require his governour or commander in chief to call a general assem- "bly, in such manner, and of such constitution and form, as to his majesty's "royal wisdom should seem best adapted to secure the peace, welfare, and good "government of this province. Wherefore with deep concern they observe, "that in certain examinations taken before your honourable house, the "British subjects here have been grossly abused and misrepresented, as "well as to their numbers as in their importance in this province. For the "number of thenew subjects has, we humblyconceive, been greatly exaggerat- "ed, it being, by the last computation, about seventy-five thousand ; whereas, 'by an enumeration of the British subjects, they amount at this time to "upwards of three thousand souls, besides many that we cannot immediately "ascertain that are dispersed in the Indian countries carrying on traffick "with the savages, besides the merchants and traders with their families "settled at Detroit and its dependencies, and at the fisheries below Quebeck. "And whereas an act of parliament has lately passed, intituled, "An act ''for the making more effectual provision for the government of the province of "Quebeck in North-America," which is said to have been passed upon the "principles of humanity and justice, and at the pressing instance and "request of the new subjects, signified to his majesty by an humble petition^ "setting forth their dislike to the British laws and form of government, and "praying, in the name of all the inhabitants and citizens of the province, "to have the French institutes in their stead, and a total abolition of trials "by jury, together with a capacity of holding places of honor and trust "in common with his majesty's ancient subjects. We crave leave to inform "your honourable house, that the said petition was never imparted to the "inhabitants in general (that is) the freeholders, merchants and traders, "who are equally alarmed with us at the Canadian laws being to take place, but "was in a secret manner carried about and signed by a few of the seigneurs, "chevaliers, advocates, and others in their confidence, at the suggestions, "and under the influence of their priests ; who, under colour of French "laws, have obtained an act. of parliament which deprives his majesty's "ancient subjects of all their rights and franchises, destroys the Habeas "Corpus act, and the inestimable privilege of trial by juries, the only "security against the venality of a corrupt judge, and gives unlimited power "to the governour and council to alter the criminal laws ; which act has "already struck a damp upon the credit of the country, and alarmed all "your humble petitioners with the just apprehensions of arbitrary fines "and imprisonment, and which, if it takes place, will oblige them to quit "the province, or, in the end, it must accomplish their ruin, and impoverish "or hurt their generous creditors, the merchants in Great-Britain, &c. "To prevent which, your petitioners most humbly pray that the said act "may be repealed or amended, and that they may have the benefit and
1 See p. 495. « See p. 554.
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"protection of the English laws, in so far as related to personal property ; "and that their liberty may be ascertained according to their ancient "constitutional rights and privileges heretofore granted to all his majesty's "dutiful subjects throughout the British empire.
"And your petitioners, as in duty bound, will ever pray.
"Quebeck, 12th Nov. 1774."
INSTRUCTIONS TO GOVERNOR CARLETON, 1775.i George R.
[L.S.]
Instructions to Our Trusty and Welbeloved Guy Carleton Esquire, Our Captain General and Governor in Chief in, and over Our Province of Quebec in America and of all Our Territories dependent thereupon. Given at Our Court at S* James's the Third Day of January 1775. In the Fifteenth year of Our Reign. First, With these Our Instructions you will receive Our Commission under Our Great Seal of Great Britain, constituting you Our Captain General
1 Canadian Archives, M 230, p. 116. There are several memoranda among the Dartmouth Papers, giving suggestions or draughts of various parts of the new Instructions for the Governor of Quebec. Most of these are without name or date. Some of them are referred to in connection with the articles of the instructions to which they relate. Among them is one endorsed, "Minutes of Quebec Instructions," which indicates some of the chief points to be considered in framing the Instructions. It is as follows: — (the numbers of the articles in the Instructions which em- body the features indicated are given within brackets after each head) :
"Quebec — Habeas Corpus writ {i3).
"Supreme Court of criminal Jurisdiction called K^ Bench. 2 Districts, Quebec & Montreal C. of Com. Pleas in each for civil suits 3 Judges in each. 2 Nat. Born & 1 Canadian. 1 C. of K's B. in each of the 5 out Posts. 1 Judge, & 1 Canad. Assessor in Treason murder or Cap. Felony only to have power to commit Council to be Court of appeal where above £10 final to £500, above appeal to K. in Council, all Commissions, during pleasure. (15).
"Gov not to displace ofificers without representation. (17).
"No ecclesiast. Jurisd. to be exercised without Licence. No person to be ordained without Licence. (21, sec. 2).
"Prot. Tythes to be paid to Rec' Gen^ for support of Protestant Clergy. (21. sec. 5).
"Seminaries of Qu. & Montr, to remain. — (21, sec. 11).
"All other Communities (except Jesuits) to remain as at present — not to fill up except Nuns." (21, sec. 12). M. 385, p. 372.
On Dec. 5, 1774, the Board of Trade submitted to the King the draught of a new Commission for Governor Carleton with such formal changes only, ascompared with the last, as were required by the terms of the Quebec Act. On Dec. 22nd the Board of Trade laid before the King the draught of the General Instructions for Governor Carleton. "This draught," they say, "contains not only such Instructions as aie usually given to other governors, so far as the same are applic- able to this Province under its New Constitution of Government; but also such other directions for the establishment of Judicature; the reform and regulation of Ecclesiastical matters; and the arrangements proper to be made in respect to the Coast of Labrador, and the interior Country, as appear to us to be necessary in consequence of the Act passed in the last Session of the late Parliament; it also contains an appointment of the Council conformable to that Act, and directs the provisions to be made for the support of the Civil Establishment of Government.
"We also humbly beg leave to lay before your Majesty a draught of such Instructions to your Majesty's Governor of Quebec as are usually given to the governors of your Majesty's other Colonies respecting the observance and the execution of the Laws for regulating the Plan- tation Trade.
"All which is most humbly submitted, Whitshed Keene, C. F. Greville, Soame Jenyns, W. Joliffe." Q 18 B.. p. 108.
On Jan. 7th, 1775, Dartmouth sent a despatch to Carleton enclosing his Commission and Instructions. After repeating the statements of the Board of Trade, given above, he adds, "These documents contain such arrangements, in consequence of the Act of the 14th of his present Majesty, for providing for the more effectual Government of the Province of Quebec, as were necessary to accompany the new Commission, & also the outlines of that System of Judicature, & general Regulation of Ecclesiastical Affairs, which the King thinks fit should be provided for by Ordinances of the Legislative Council. Q 11, p. 59.
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and Governor in Chief in, and over Our Province of Quebec in America, and all Our Territories thereunto belonging, as the said Province and Territories are bounded and described in, and by the said Commission. You are therefore to take upon you the Execution of the Office and Trust We have reposed in you, and the Administration of the Government, and to do and execute all things in due manner, that shall belong to your Com- mand according to the several Powers and Authorities of our said Com- mission under Our Great Seal of Great Britain, and these Our Instructions to you, or according to such further Powers and Instructions, as shall at any time hereafter be granted or appointed you under Our Signet and Sign Manual, or by Our Order in Our Privy Council; and you are to call together at Quebec, (Which We do hereby appoint to be the place of your ordinary Residence, and the principal Seat of Government,) the following persons whom We do hereby, with the Advice of Our Privy Council, constitute and appoint to be Our Council for the Affairs of Our said Province of Quebec, and the Territories thereunto belonging ; Viz. Hector Theophilus Cramahe Esquire, Our Lieutenant Governor of Our said Province or Our Lieutenant Governor of Our said Province for the time being. Our Chief Justice of Our Province for the time being, Hugh Finlay, Thomas Dunn, James Cuthbert. Colin Drummond, Francis Les Vesques ; Edward Harrison, John Collins, Adam Mabean, — De Lery, — S* Ours, Picodyde Contrecoeur, Our Secretary of Our said Province for the time being, George Alsopp, — De La Naudiere, La Corne S* Luc, Alexander Johnstone, Conrad Gugy, — Bellestres, — Rigauville, and John Eraser Esquires ; All and every of which Person and Persons shall hold and enjoy his & their Office and Offices of Councillor or Councillors for Our said Province of Quebec, for and during Our Will and Pleasure, and his or their Residence within Our said Province, and not otherwise.
2. It is Our further Will and Pleasure, that any five of the said Council shall constitute a Board of Council for transacting all Business, in which their Advice and consent may be requisite, Acts of Legislation only excepted, (in which Case you are not to act without a Majority of the whole,) And it is Our further Will and Pleasure, that the Members of Our said Council shall have and enjoy all the Powers, Privileges, and Emoluments enjoyed by the Members of Our Councils in Our other Plantations ; and also such others as are contained and directed in Our said Commission under Our Great Seal of Great Britain, and in these Our Instructions to you ; and that they shall meet together at such time and times, place and places, as you in your discretion shall think necessary, except when they meet for the purpose of Legislation, in which Case they are to be assembled at the Town of Quebec only.
3. And You are with all due and usual Solemnity to cause Our said Commission to be read and published at the said Meeting of Our Council, which being done, you shall then take and also administer to each of the Members of Our said Council, (not being a Canadian, professing the Religion
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of the Church of Rome,) the Oaths mentioned in an Act passed in the first year of the Reign of His Majesty King George the first, intituled, "An Act "for the further Security of His Majesty's Person, and Government, and the "Succession of the Crown in the Heirs of the late Princess Sophia, being "Protestants ; and for extinguishing the hopes of the pretended Prince of "Wales, and his open and secret Abettors," as altered and explained by an Act passed in the sixth year of Our Reign, intituled, "An Act for altering "the Oath of Abjuration, and the Assurance ; and for amending so much of "an.Act of the seventh year of Her late Majesty Queen Anne, intituled. An "Act for the Improvement of the Union of two Kingdoms, as, after the time "therein limited, requires the delivery of certain Lists and Copies, therein "mentioned, to persons indicted of High Treason, or Misprision of Treason;" as also make and subscribe, and cause them to make and subscribe the declaration mentioned in an Act of Parliament made in the twenty fifth Year of the Reign of King Charles the second, intituled, "An Act for "preventing Dangers, which may happen from Popish Recusants;" and you and every one of them are likewise to take an Oath for the due Execution of your and their Places and Trusts, with regard to your and their equal and impartial Administration of Justice ; and you are also to take the Oath required by an Act passed in the seventh and eighth years of the Reign of King William the third, to be taken by Governors of Plantations to do their utmost, that the Laws relating to the Plantations be observed.
4. And Whereas by an Act passed in the fourteenth year of Our Reign, intituled, "An Act for making more efifectual provision for the Government "of the Province of Quebec in North America," it is enacted and provided, that no person, professing the Religion of the Church of Rome, and residing in the said Province, shall be obliged to take the Oath of Supremacy required by an Act passed in the first year of the Reign of Queen Elizabeth, or any other Oaths substituted by any other Act in the place thereof ; but that every such Person, who by the said Statute is required to take the Oaths therein mentioned, shall be obliged, and is thereby required, under certain Penalties, to take and subscribe an Oath in the form and Words therein prescribed, and set down ; It is therefore Our Will and Pleasure, that you do administer to each and every Member of Our said Council, being a Canadian, and professing the Religion of the Church of Rome, and cause each of them severally to take and subscribe the Oath mentioned in the said Act passed in the fourteenth year of Our Reign, intituled ; "An Act for making more effectual provision for the Government of the "Province of Quebec in North America ;" and also cause them severally to take an Oath for the due Execution of their places and Trusts, and for their equal and impartial administration of Justice.
5. And that We may be always informed of the Names and Characters of Persons fit to supply the Vacancies, which may happen in Our said Council, You are from time to time to transmit to Us, by one of Our Prin- cipal Secretaries of State, the names and Characters of such persons, Inhabi-
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tants of Our said Colony, whom you shall esteem the best qualified for that Trust ; And you are also to transmit a duplicate of the said Account to Our Commissioners for Trade and Plantations, for their Information.
6. And if it shall at any time happen, that by the death or departure out of Our said Province, of any of Our said Councillors, there shall be a Vacancy in Our said Council, Our Will and Pleasure is ; that you signify the same to Us by one of Our principal Secretaries of State, and to Our Commissioners for Trade and Plantations, by the first Opportunity, that we may by Warrant under Our Signet and Sign Manual, and with the Advice of Our Privy Council, constitute and appoint others in their stead.
7. You are forthwith to communicate such and so many of these Our Instructions to Our said Council, wherein their Advice and Consent are mentioned to be requisite, as likewise all such others from time to time, as you shall find convenient for Our Service to be imparted to them.
8. You are to permit the Members of Our said Council to have and Enjoy Freedom of Debate and vote in all Afifairs of Public Concern, that may be debated in Council.
9. And Whereas by the aforesaid Act passed in the fourteenth year of Our Reign, intituled, "An Act for making more effectual Provision for the "Government of the Province of Quebec in North America," It is further enacted and Provided, that the Council for the Affairs of the said Province, to be constituted and appointed in Manner therein directed, or the Major Part thereof, shall have power and Authority to make Ordinaftces for the peace. Welfare, and good Government of the said Province with the Consent of Our Governor, or, in his absence, of the Lieutenant Governor, or Com- mander in Chief for the time being ; provided, that no Ordinance shall be passed, unless upon some urgent Occasion at any Meeting of the Council, except between the first day of January and the first day of May. *(And Whereas the State and condition of Our said Province do require, that immediate provision should be made by Law for a Great Variety of Arrange- ments and Regulations essentially necessary to the Government thereof ; It is therefore Our Will and Pleasure, that you do within a convenient time issue Summons for the Assembling of our said Council in their Legis- lative Capacity either on the first day of April next, or as soon after as may be convenient, in Order to deliberate upon, and frame such Ordinances, as the Condition of Affairs within Our said Province shall require, and as shall, in your and their Judgement, be fit and necessary for the Welfare of Our said Province, and the Territories thereunto belonging.)^
10. You are nevertheless to take especial Care,
That no Ordinance be passed at any Meeting of the Council, where less than a Majority of the Council is present, or at any time, except between the first day of January and the first day of May, as aforesaid, unless upon
* The latter part of this section (in bracket) omitted in the instruction to Haldimand.
1 The first session of the Legislative Council was convened 17 August, 1775. Two other brief meetings were held Sept. 2^^ and 5"> but no legislative results were accomplished before Jan., 1777, when the Council resumed its sessions.
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some urgent Occasion ; in which Case every Member thereof resident at Quebec, or within fifty Miles thereof shall be personally summoned to attend
the same.
That no Ordinance be passed for laying any Taxes or Duties, such Rates and Taxes only excepted, as the Inhabitants of any Town or District may be authorized to assess, levy, and apply within the said Town or District, for the making Roads, erecting and repairing public Buildings, or for any other purpose respecting the Local Convenience and Oeconomy of such Town or District.
That no Ordinance touching Religion, or by which any punishment may be inflicted greater than Fine or Imprisonment for three Months, be made to take effect, until the same shall have received Our Approbation.
That no Ordinance be passed relative to the Trade, Commerce, or Fisheries of the said Province, by which the Inhabitants thereof shall be put upon a more advantageous footing, than any other His Majesty's Subjects either of this Kingdom, or the Plantations.
That no Ordinance respecting private property be passed without a Clause suspending its Execution, until Our Royal Will and Pleasure is known ; nor without a saving of the Right of Us, Our Heirs, and Successors, and of all Bodies politic and corporate, and of all other persons, except such as are mentioned in the said Ordinance, and those claiming by, from, and under them ; And, before such Ordinance is passed, proof must be made before you in Council, and entered in the Council-Books, that public Notifi- cation was made of the Party's Intention to apply for such Ordinance in the several Parish Churches, where the Lands in Question lye, for three Sundays at least successively, before any such Ordinance shall be proposed ; and you are to transmit and annex to the said Ordinance a Certificate under your hand that the same passed through all the Forms abovementioned.
That no Ordinance shall be enacted for a less time than two years, except in Cases of imminent Necessity, or immediate temporary Expediency; and you shall not reenact any Ordinance, to which Our Assent shall have been once refused, without express leave for that purpose first obtained from Us, upon a full Representation by you to be made to Us by one of Our Principal Secretaries of State, and to Our Commissioners for Trade and Plantations, for their Information, of the Reasons and Necessity for passing such Ordinance ; nor give your Assent to any Ordinance for repealing any other Ordinance, which hath passed in your Government, and shall have received Our Royal Approbation, unless you take Care, that there be a Clause inserted therein suspending and deferring the Execution thereof, until Our Pleasure shall be known, concerning the Same.
That in all Ordinances imposing Fines, Forfeitures, or Penalties, express Mention be made, that the same is granted or reserved to Us, Our Heirs, and Successors for the public Uses of the said Province, and the Support of the Government thereof, as by the said Ordinance shall be directed ; and that a Clause be inserted declaring, that the Money, arising by the Operation
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of the said Ordinance, shall be accounted for unto Us in this Kingdom, and to Our Commissioners of Our Treasury for the time being ; and audited by Our Auditor General of Our Plantations, or his Deputy.
That all such Ordinances be transmitted by you within six Months after their passing, or sooner, if opportunity offers, to Us by One of our Principal Secretaries of State, and Duplicates thereof to Our Commissioners for Trade and Plantations, for their Information ; that they be abstracted in the Margents, and accompanied with very full and particular Obser- vations upon each of them, that is to say, whether the same is introductive to a new Law, or does repeal a Law then before in being ; and you are also to transmit in the fullest manner the Reasons and Occasions for enacting such Ordinances, together with fair Copies of the Journals of the proceedings of the Council, which you are to require from the Clerk of the said Council.
IL In the Consideration of what may be necessary to be provided for by Law within Our said Province, as created and established by the afore- said Act, intituled, "an Act for making more effectual Provision for the "Government of the Province of Quebec in North America," a Great Variety of important Objects hold themselves forth to the Attention of the Legis- lative Council.
12, The Establishment of Courts, and a proper Mode of administering Civil and Criminal Justice throughout the whole Extent of Our Province, according to the Principles declared in the said Act "for making more "effectual Provision for the Government thereof," demand the greatest Care and Circumspection ; for, as on the one hand it is Our Gracious purpose, conformable to the Spirit and Intention of the said Act of Parlia- ment, that Our Canadian Subjects should have the benefit and use of their own Laws, Usages, and Customs in all Controversies respecting Titles of Land, and the Tenure, descent, Alienation, Incumbrances, and Settlement of Real Estates, and the distribution of the personal property of Persons dying intestate; so on the other hand, it will be the duty of the Legislative Council to consider well in framing such Ordinances, as may be necessary for the Establishment of Courts of Justice, and for the better Administration of Justice, whether the Laws of England may not be, if not altogether, at least in part the Rule for the decision in all Cases of personal Actions grounded upon Debts, Promises, Contracts, and Agreements, whether of a Mercantile or other Nature ; and also of Wrongs proper to be compensated in damages ; and more especially where Our natural-born Subjects of Great Britain, Ireland, or Our other Plantations residing at Quebec, or who may resort thither, or have Credits, or Property within the same, may happen
to be either Plaintiff or defendant in any civil Suit of such a nature.'
« 1
1 This and the following article with reference to the writ of Habeas Corpus, form the first step in that piecemeal process of impairing the complete restoration of the French Canadian civil law granted by the Quebec Act, particularly the 8th clause of it. As may be seen from several subsequent documents, this was the basis of continued conflict in the Council and in the Courts until 1791, when the controversy took another turn. In a document in the Dart- mouth Papers, endorsed "Extract fiom the Instructions to the Governor of Quebec, so far as relates to the Establishment of Courts of Law," this clause appears in the following form:— "The Legislative Council are to frame the Ordinances for the Establishment of Courts of Justice,
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13. Security to personal Liberty is a fundamental Principle of Justice in all free Governments, and the making due provision for that purpose is an object the Legislature of Quebec ought never to lose Sight of ; nor can they follow a better Example than that, which the Common Law of this Kingdom hath set in the Provision made for a Writ of Habeas Corpus, '^ which is the Right of every British Subject in this Kingdom.
14. With Regard to the Nature and number of the Courts of Justice^ which it may be proper to establish, either for the whole Province at large,. or separately for its dependencies, and the times and places for holding the said Courts, no certain Rule can be laid down in a Case, in which the Judge- ment must in many Respects at least be altogether guided by Circum- stances of local Convenience and Consideration.
15. In General it may be proper, that there should be a Superior or Supreme Court of criminal Justice and Jurisdiction for the Cognizance of all Pleas of the Crown, and for the Trial of all manner of Offences whatso- ever, to be held before the Chief Justice for the time being at such times and places, as shall be most convenient for the due and speedy Administration of Justice, and the preventing long imprisonments ; the said Court to be called and known by the name of the Court of King's Bench ; That for the more orderly establishment and Regulation of Courts of Civil Jurisdiction, the Province of Quebec, as limited and bounded by the afore- said Act of Parliament "for making more effectual Provision for the Govern- "ment of the Province of Quebec in North America," be divided into two Districts by the names of Quebec and Montreal, each district to be limited and bounded in such manner, as shall be thought best adapted to the Object of the Jurisdiction to be established therein ; That there be established in each of the said Districts a Court of Common pleas to be held at such times and places, as shall be judged most convenient, and to have full power, Jurisdiction and Authority to hear and determine all Civil Suits and Actions cognizable by the Court of Common Pleas in Westminster Hall, according to the Rules prescribed by the said Act of Parliament "for making more "effectual Provision for the Government of the Province of Quebec in North "America," and according to such Laws and Ordinances, as shall from time to time be enacted by the Legislature of the said Province in manner therein directed ; That there be three Judges in each of the said Courts of Common Pleas, that is to say, two of Our natural-born Subjects of Great Britain^ Ireland, or Our other Plantations, and one Canadian ; and also one Sheriff appointed for each district ; That besides the foregoing Courts of Criminal and Civil Jurisdiction for the Province at large, there be also an Inferior Court of Criminal and Civil Jurisdiction in each of the Districts of the
and for the administration of Justice, so as that the Laws of England, if not altogether, may be as nearly as possible the Rule of Decision in all personal Actions, grounded upon Debts, Con- tracts, &c., and especially where the natural-born subjects are concerned." M 385, p. 485.
^ Yet when this was most vigorously contended for at the passing of the Quebec Act it was absolutely denied by the Government. In the document referred to in the previous note, this article reads as follows,— "Security to personal Liberty to be provided for: And the Writ of Habeas Corpus, as a part of the criminal Law, to be adopted in its full Extent." M 385, p. 485.
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Illinois, S* Vincenne, Detroit, Missilimakinac, and Gaspee, by the Names of the Court of King's Bench for such district, to be held at such times, as shall be thought most convenient, with Authority to hear and determine in all Matters of Criminal Nature according to the Laws of England, and the Laws of the Province hereafter to be made and passed ; and in all Civil matters according to the Rules prescribed by the aforesaid Act of Parliament "for "making more effectual Provision for the Government of Quebec in North "America ;" That each of the said Courts shall consist of one judge, being a natural-born Subject of Great Britain, Ireland, or Our other Plantations, and of one other Person, being a Canadian, by the name of Assistant or Assessor, to give advice to the Judge in any Matter, when it may be neces- sary ; but to have no Authority or Power to attest or issue any Process, or to give any Vote in any order. Judgement, or decree ; That the said Judges, so to be appointed, as aforesaid, for each District, shall have the same power and Authority in Criminal Cases, as is vested in the Chief Justice of Our said Province ; and also the same Power and Authority in Civil Cases, as any other Judge of Common Pleas within Our said Province, excepting only that, in Cases of Treason, Murder, or other Capital Felonies, the said Judges shall have no other Authority, than that of Arrest and Commitment to the Goals of Quebec, or of Montreal, where alone Offenders in such Cases shall be tried before Our Chief Justice ; That a Sheriff be appointed in each of the said Districts for the Execution of Civil and Criminal Process ; That the Governor and Council (of which, in the absence of the Governor and Lieutenant Governor, the Chief Justice is to be Presi- dent,) shall be a Court of civil Jurisdiction for the hearing and determining all Appeals from the Judgement of the other Courts, where the matter in dispute is above the value of Ten Pounds ; That any Five of the said Council, with the Governor, Lieut* Governor, or Chief Justice, shall constitute a Court for that purpose ; and that their Judgement shall be final in all Cases not exceeding the value of £500 sterling, in which Cases an Appeal from their Judgement is to be admitted to Us in Our Privy Council. It is however Our Will and Pleasure, that no Appeal be allowed, unless security be first duly given by the Appellant, that he will effectually prosecute the same, and answer the Condemnation, as also pay such Costs and Damages, as shall be awarded by Us, in case the Sentence be affirmed ; Provided nevertheless, where the matter in question relates to the taking or demand- ing any Duty payable to Us, or to any Fee of Office, or annual Rents, or other such like matter or thing, where the Rights in future may be bound, in all such Cases appeal to Us, in Our Privy Council is to be admitted, tho' the immediate sum or value appealed for be of less value. — ^And it is Our further Will and Pleasure, that in all Cases, where Appeals are admitted unto Us in Our Privy Council, execution be suspended until the final determination of such Appeal, unless good and sufficient security be given by the Appellee to make ample restitution of all, that the Appellant shall have lost by means of such decree or judgement, in case, upon the determination
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of such Appeal, such decree or judgement should be reversed, and restitution awarded to the Appellant. Appeals unto Us in Our Privy Council are also to be admitted in all cases of Fines imposed for misdemeanors ; Provided the fines, so imposed, amounted to, or exceed the sum of £100 sterling, the Appellant first giving good Security, that he will effectually prosecute the same and answer the Condemnation, if the sentence, by which such Fine was imposed in Quebec, be affirmed.^*
16. It is Our Will and Pleasure, that all Commissions to be granted by you to any person or persons to be judges or justices of the peace, or other necessary Officers, be granted during pleasure only.
17. You shall not displace any of the Judges, Justices of the peace or other Officers or Ministers without good and sufficient cause, which you shall signify in the fullest and most distinct manner to Us by one of Our principal Secretaries of State, and to Our Commissioners for Trade and Plantations, for their information.
18. And whereas frequent complaints have heretofore been made of great delays and undue proceedings in the Courts of Justice in several of Our Plantations, whereby many of Our good Subjects have very much suffered ; and it being of the greatest importance to Our Service, and to the welfare of Our Plantations, that Justice be every where speedily and duly administered ; and that all disorders, delays, and other undue Practises in the administration thereof be effectually prevented ; We do particularly require you to take especial Care, that in all Courts, where you are or shall be authorized to preside, justice be impartially administered ; and that in all other Courts established, or to be established within Our said Province, all Judges, and other Persons therein concerned do likewise perform their several Duties without any delay or partiality.
19. You are to take care, that all Writs be issued in Our Name through- out the Province under your Government.
20. The establishment of proper regulations in matters of ecclesiastical concern is an Object of very great importance, and it will be your indispen- sable duty to lose no time in making such arrangements in regard thereto, as may give full satisfaction to Our new Subjects in every point, in which they have a right to any indulgence on that head ; always remembering, that it is a toleration of the free exercise of the religion of the Church of Rome only, to which they are entitled, but not to the powers and privileges of it, as an established Church, for that is a preference, which belongs only to the Protestant Church of England.
21. Upon these principles therefore, and to the end, that Our just Supremacy in all matters ecclesiastical, as well as civil, may have its due scope and influence, it is Our Will and Pleasure,
* An additional article inserted in Haldimand's instructions. See page 697.
* The greater part of this article of the Instructions is based upon the "Epitome of the pro- posed Ordinance for establishing Courts of Justice in the Province of Quebec," referred to in note 2, p. 584, and given in full below at p. 637. The paper endorsed "Extract from the In- structions" &c., M 385, p. 485, covers this field also, but its lines are not followed. However, the last few clauses in it are again taken up in the succeeding four articles, Nos. 16-19.
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First, that all Appeals to, or correspondence with any foreign ecclesias- tical jurisdiction, of what nature or kind so ever, be absolutely forbidden under very severe Penalties.
Secondly, That no Episcopal or Vicarial Powers be exercised within Our said Province by any Person professing the Religion of the Church of Rome, but such only, as are essentially and indispensably necessary to the free exercise of the Romish Religion ; and in those cases not without a Licence and Permission from you under the Seal of Our said Province, for, and during Our Will and Pleasure, and under such other limitations & restrictions, as may correspond with the spirit and provision of the Act of Parliament, "for making more effectual provision for the Government of "the Province of Quebec ;" And no person whatever is to have holy Orders conferred upon him, or to have the Cure of Souls without a License for that purpose first had or obtained from you.
Thirdly, That no person professing the Religion of the Church ot Rome be allowed to fill any ecclesiastical Benefice, or to have and enjoy any of the Rights or Profits belonging thereto, that is not a Canadian by birth, (such only excepted, as are now in possession of any such Benefice,) and that is not appointed thereto by Us, or by, or under Our Authority, and that all Right, or claim of right in any other Person whatever to nominate, present, or appoint to any vacant Benefice, other than such as may lay claim to the patronage of Benefices, as a Civil Right, be absolutely abolished. No Person to hold more than one Benefice, or at least not more than can reasonably be served by one and the same Incumbent.
Fourthly, That no person whatever, professing the Religion of the Church of Rome, be appointed Incumbent of any Parish, in which the Majority of the Inhabitants shall solicit the appointment of a Protestant Minister ; in such case the Incumbent shall be a Protestant, and entitled to all Tythes payable within such Parish ; But nevertheless the Roman Catholicks may have the use of the Church for the free exercise of their Religion at such time, as may not interfere with the Religious Worship of the Protestants : And in like manner the Protestant Inhabitants in every Parish, where the Majority of Parishioners are Roman Catholicks, shall notwithstanding have the use of the Church for the exercise of their Religion at such times, as may not interfere with the Religious Worship of the Roman Catholicks.
Fifthly, That no Incumbent professing the Religion of the Church of Rome, appointed to any Parish, shall be entitled to receive any Tythes for Lands, or Possessions occupied by a Protestant ; but such Tythes shall be received by such Persons, as you shall appoint, and shall be reserved in the hands of Our Receiver General, as aforesaid, for the support of a Protes- tant Clergy in Our said Province to be actually resident within the same, and not otherwise, according to such directions as you shall receive from Us in that behalf. — ^And in like manner all growing Rents and Profits of a
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vacant Benefice shall, during such vacancy, be reserved for, and applied to the like uses.
Sixthly, That all Persons professing the Religion of the Church of Rome, which are already possessed of, or may hereafter be appointed to any ecclesiastical Benefice, or who may be' licensed to exercise any Power or Authority in respect theret©, do take and subscribe before you in Council, or before such Person as you shall appoint to administer the same, the Oath required to be taken and subscribed by the aforesaid Act of Parliament passed in the fourteenth year of Our Reign, intituled, "An Act for making "more effectual Provision for the Government of the Province of Quebec "in North America."
Seventhly, That all Incumbents of Parishes shall hold their respective Benefices during good behaviour, subject however, in cases of any Con- viction for criminal OfTences, or upon due proof of seditious Attempts to disturb the Peace and Tranquillity of Our Government, to be deprived, or suspended by you with the Advice and Consent of a Majority of Our said Council.
Eighthly, That such Ecclesiasticks, as may think fit to enter into the holy state of Matrimony, shall be released from all Penalties, to which they may have been subjected in such Cases by any Authority of the See of Rome.
Ninthly, That freedom of Burial of the Dead in Churches and Church yards be allowed indiscriminately to every Christian Persuasion.
Tenthly, That the Royal Family be prayed for in all Churches and Places of Holy Worship, in such manner and form, as are used in this Kingdom ; and that Our Arms and Insignia be put up not only in all such Churches and Places of holy Worship, but also in all Courts of Justice ; and that the Arms of France be taken down in every such Church or Court, where they may at present remain.
Eleventhly, That the Society of Romish Priests, called the Seminaries of Quebec and Montreal, shall continue to possess and occupy their Houses of Residence, and all other Houses and Lands, to which they were lawfully intitled on the IS*'* of September 1759 ; and it shall be lawful for those Societies to fill up Vacancies, and admit new Members according to the Rules of their Foundations, and to educate Youth, in order to qualify them for the Service of Parochial Cures ; as they shall become vacant. It is nevertheless Our Will and Pleasure, that not only these Seminaries, but all other Religious Communities, so long as the same shall continue, be subject to visitation by You Our Governor, or such other Person or Persons, as you shall appoint for that purpose, and also subject to such Rules and Regul- ations, as you shall, with the Advice and Consent of Our Council, think fit to establish and appoint.
Twelfthly, It is also Our Will and Pleasure, that all other Religious Seminaries and Communities (that of the Jesuits only excepted) do for the present and until We can be more fully informed of the true State of them,
CONSTITUTIONAL DOCUMENTS 60S
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and how far they are, or are not essential to the free exercise of the Religion of the Church of Rome, as allowed within Our said Province, remain upon their present Establishment; but you are not to allow the admission of any new Members into any of the said Societies or Communities, the Religious Communities of Women only excepted, without our express orders for that purpose. That the Society of Jesuits be suppressed and dissolved, and no longer continued, as a Body corporate and politic, and all their Rights, Possessions and Property shall be vested in Us for such purposes, as We may hereafter think fit to direct and appoint ; but We think fit to declare Our Royal Intention to be, that the present Members of the said Society, as established at Quebec shall be allowed sufficient stipends and Provisions during their natural Lives ; — That all Missionaries amongst the Indians, whether established under the Authority of, or appointed by the Jesuits, or by any other ecclesiastical Authority of the Romish Church, be with- drawn by degrees, and at such times and in such manner, as shall be satis- factory to the said Indians, and consistent with the Public Safety ; and Protestant Missionaries appointed in their places ; That all ecclesiastical Persons whatsoever, of the Church of Rome, be inhibited, upon Pain of Deprivation, from influencing any Person in the making a Will, from inveigling Protestants to become Papists, or from tampering with them in matter of Religion, and that the Romish Priests be forbid to inveigh in their Sermons against the Religion of the Church of England, or to marry, baptize, or visit the sick, or bury any of Our Protestant Subjects, if a Protes- tant Minister be upon the Spot.
22. You are at all times and upon all occasions to give every Counte- nance and Protection in your Power to such Protestant Ministers, and School Masters, as are already established within Our said Province, or may here- after be sent thither, to take Care, that such Stipends and Allowances, as We may think fit to appoint for them, be duly paid ; that the Churches already appropriated, or which may hereafter be appropriated to the use of Divine Worship according to the Rites of the Church of England, as by Law established, be well and orderly kept ; and, as the Number of Pro- testants shall, by God's Blessing, increase, to lay out new Parishes in convenient Situations, and set apart and appropriate proper Districts of Land therein for the Scite of Churches, and Parsonage Houses, and for Glebes for the Ministers and Schoolmasters.
23. You are to take especial Care, that God Almighty be devoutly and duly served in all Protestant Churches and Chapels throughout Our said Province, in which Divine Service is performed according to the Rites of the Church of England ; the Book of Common Prayer, as by Law established, be read each Sunday and Holiday; and the Blessed Sacrament duly adminis- tered.
24. You are not to prefer any Protestant Minister to any ecclesiastical Benefice in the Province under your Government, without a Certificate from the Right Reverend Father in God the Lord Bishop of London, of his
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being conformable to the Doctrine and Discipline of the Church of England, and of a good Life and Conversation ; and if any Person hereafter preferred to a Benefice shall appear to you to give Scandal either by his doctrine or manners, you are to use the best means for his Removal.
25. You are to give orders forthwith, that every Protestant Minister within your Government, be one of the Vestry in his respective Parish ; and that no Vestry be held without him, except in case of Sickness, or, after Notice of a Vestry summoned, he omit to come.
26. And to the end, that the ecclesiastical Jurisdiction of the Lord Bishop of London may take place in Our Province under your Government, as far as conveniently may be ; We do think fit, that you give all Counten- ance and Encouragement to the exercise of the same, excepting only the collating to Benefices, granting Licenses for Marriages, and Probates of Wills, which We have reserved to you Our Governor, and to the Commander in Chief of Our said Province for the time being.
27. And We do further direct, that no School-master, who shall arrive in Our said Province from this Kingdom, be henceforward permitted to keep School without the Licence of the said Lord Bishop of London ; and that no other Person now there, or that shall come from other Parts, shall be admitted to keep School in your Government without your Licence first obtained.
28. You are to take especial Care, that a Table of Marriages, estab- lished by the Canons of the Church of England, be hung up in all places of public Worship according to the Rites of the Church of England.
29. And it is our further Will and Pleasure, that, in order to suppress, as much as in you lies, every species of Vice and Immorality, You forthwith do cause all Laws already made against Blasphemy, Prophaneness, Adultery, Fornication, Polygamy, Incest, Profanation of the Lord's day. Swearing, and Drunkenness, to be vigorously put in execution in every part of your Government ; and that you take due Care for the punishment of these and every other Vice and Immorality by presentment upon Oath, to be made to the Temporal Courts by the Church Wardens of the several Parishes at proper times of the Year to be appointed for that purpose ; And for the further discouragement of Vice and encouragement of Virtue and good Living, (that by such Examples the Infidels may be invited and perswaded to embrace the Christian Religion,) You are not to admit any Persons to public Trusts and Employments in the Province under your Government, whose ill fame and conversation may occasion Scandal.
30. The Extension of the Limits of the Province of Quebec necessarily calls forth your Attention to a Variety of new Matter and new Objects of Consideration ; The protection and control of the various Settlements of Canadian Subjects, and the regulation of the Peltry Trade in the upper or interior Country on the one hand, and the protection of the Fisheries in the Gulph of S* Lawrence, and on the Labrador Coast on the other hand, point to Regulations, that require deliberation and despatch.
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31. The institution of inferior Judicatures with limited Jurisdiction in Criminal and Civil Matters for the Illinois, Poste S* Vincenne, the Detroit, Missilimakinac, and Gaspee has been already pointed out, and the Appointment of a Superintendent at each of these Posts is all, that is further necessary for their Civil concerns ; But it will be highly proper, that the Limits of each of those Posts, and of every other in the interior Country should be fixed and ascertained ; and that no Settlement be allowed beyond those Limits ; seeing that such Settlements must have the consequence to disgust the Savages ; to excite their Enmity ; and at length totally to destroy the Peltry Trade, which ought to be cherished and encouraged by every means in your Power.
32. It is Our "Royal Intention, that the Peltry Trade of the interior Country should be free and open to all Our Subjects, Inhabitants of any of Our Colonies, who shall, pursuant to what was directed by Our Royal Proclamation of 1763, obtain Licences frorn the Governors of any of Our said Colonies for that purpose, under penalties to observe such Regulations, as shall be made by Our Legislature of Quebec for that purpose ; Those Regulations therefore, when established, must be made public throughout all Our American possessions, and they must have for their object the giving every possible facility to that Trade, which the nature of it will admit, and as may consist with fair and just dealing towards the Savages, with whom it is carried on. The fixing stated times and places for carrying on the Trade, and adjusting modes of settling Tariffs of the prices of Goods and Furs, and above all the restraining the Sale of Spirituous Liquors to the Indians will be the most probable and effectual means of answering the ends pro- posed. These and a variety of other regulations, incident to the nature and purpose of the Peltry Trade in the interior Country, are fully stated in a Plan proposed by Our Commissioners for Trade and Plantations in 1764, a copy of which is hereunto annexed,^ and which will serve as a Guide in a variety of cases, in which it may be necessary to make provision by Law for that important Branch of the American Commerce.
ZZ. The Fisheries on the Coast of Labrador, and the Islands adjacent thereto are objects of the greatest Importance, not only on account of the Commodities they produce, but also as Nurseries of Seamen, upon whom the Strength and Security of Our Kingdom depend.
34. Justice and Equity demand, that the real and actual property and possession of the Canadian Subjects on that Coast should be preserved intirely; and that they should not be molested or hindered in the exercise of any Sedentary Fisheries they may have established there.
35. Their Claims however extend to but a small District of the Coast, on the greatest part of which District a Cod Fishery is stated to be impracti- cable.
36. On all such parts of the Coast, where there are no Canadian Pos- sessions, and more especially where a valuable Cod Fishery may be carried
> The plan is given below, following these Instructions; see p. 614.
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on, it will be your Duty to make the Interests of Our British Subjects going out to fish there in Ships fitted out from Great Britain the first object of your care, and, as far as circumstances will admit, to establish on that Coast the Regulations in favour of British fishing Ships, which have been so wisely adopted by the Act of Parliament passed in the Reign of King William the Third "for the encouragement of the Newfoundland Fishery ;" and you are on no account to allow any possession to be taken, or sedentary Fisheries to be established upon any parts of the Coast, that are not already private Property, by any persons whatever, except only such as shall produce annually a Certificate of their having fitted out from some Port in Great Britain.
37. We have mentioned to you the Fisheries upon the Coast of Labra- dor, as the main object of your attention ; but the Commerce carried on with Savages of that Coast, and the state and condition of those Savages deserve some regard ; The Society of Unitas Fratrum, urged by a laudable Zeal for promoting Christianity, has already, under Our Protection, and with Our Permission, formed Establishments in the Northern parts of that Coast for the purposes of civilizing the Natives, and converting them to the Christian Religion. Their success has been answerable to their Zeal ; and it is Our express Will and Pleasure, that you do give them every coun- tenance and Encouragement in your power, and that you do not allow any Establishment to be made, but with their consent, within the limits of their possessions.
38. By Our Commission to you under Our Great Seal of Great Britain you are authorised and impowered, with the advice and consent of Our Council, to settle and agree with the Inhabitants of Our said Province of Quebec for such Lands, Tenements, and Hereditaments, as now are, or shall hereafter be in Our Power to dispose of. It is therefore Our Will and Pleasure, that all Lands, which now are, or hereafter may be subject to Our Disposal, be granted in Fief orSeigneurie, in like manner as was practiced antecedent to the Conquest of the said Province; omitting however in any Grant, that shall be passed of such Lands, the Reservation of any Judicial pow- ers, or privileges whatever. And it is Our further Will and Pleasure, that all Grants in Fief or Seigneurie, so to be passed by you, as aforesaid, be made subject to Our Royal Ratification, or Disallowance, and to a due Registry thereof within a limited time, in like manner as was practised in regard to Grants and Concessions held in Fief and Seigneurie under the French Government.
39. It is Our Will and Pleasure however, that no Grants be made of any Lands, on which there is any considerable growth of white Pines fit for Masting Our Royal Navy, and which lie convenient for water carriage ; But that you do cause all such Lands to be set apart for Our Use, and proper regulations made, and penalties inflicted, to prevent trespasses on such Tracts, and the cutting down, or destroying the Trees growing thereon.
CONSTITUTIONAL DOCUMENTS 609
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40. And whereas it appears from the Representation of Our late Gove- nor of the District of Trois Rivieres that the Iron Works at Saint Maurice in that District are of great consequence to Our Service. It is therefore Our Will and Pleasure, that no part of the Lands, upon which the said Iron Works were carried on, or from which the Ore used in such Works was procured, or which shall appear to be necessary and convenient for that Establishment, either in respect to a free passage to the River Saint Law- rence, or for producing a necessary supply of Wood, Corn, and Hay, or for Pasture for Cattle,, be granted to any private person whatever. And also that as large a District of Land, as conveniently may be, adjacent to, and lying round the said Iron Works, over and above what may be necessary for the above purposes, be reserved for Our Use, to be disposed of in such manner as We shall hereafter direct and appoint.
4L And it is Our further Will and Pleasure, that you do consider of a proper and effectual method of collecting, receiving, and accounting for Our Quit rents, whereby all Frauds, Concealments, Irregularity, or neglect therein may be prevented, and whereby the receipt may be effectually checked and controlled. And if it shall appear necessary to pass an Act for the more effectually ascertaining, and the more speedily and regularly collecting Our Quit rents, you are to prepare the heads of such a Bill, as you shall think may most effectually conduce to the procuring the good ends proposed ; and to transmit the same to Us by one of Our principal Secretaries of State for Our further Directions therein. And you are also to transmit a Duplicate thereof to Our Commissioners for Trade and Plan- tations for their information.
42. You are to use your best endeavours in improving the Trade of the Province under your Government by settling such Orders and Regu- lations therein, with the advice of Our said Council, as may be most accept- able to the generality of the Inhabitants; And It is Our express Will and Pleasure, that you do not upon any pretence whatever, upon pain of Our Highest Displeasure, give your assent to any Law or Laws for setting up any Manufactures, and carrying on any Trades, which are hurtful and pre- judicial to this Kingdom; and that you do use your utmost endeavours to discourage, discountenance, and restrain any attempts, which may be made to set up such Manufactures, or establish any such Trades.
43. And it is Our Will and Pleasure, that you do not dispose of any Forfeitures or Escheats to any person, until the Sheriff or other proper Officer have made enquiry by a Jury upon their Oaths into the true value thereof; nor until you have transmitted to Our Commissioners of Our Treasury a particular account of such Forfeitures, and Escheats, and the Value thereof ; and you are to take care, that the produce of such Forfeitures and Escheats, in case We shall think proper to give you directions to dispose of the same, be duly paid to Our Treasurer or Receiver General of Our said Province; and a full account transmitted to Our Commissioners of
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Our Treasury, or Our High Treasurer for the time being, with the names of the persons, to whom disposed.
44. And whereas Commissions have been granted unto several persons in Our respective Plantations in America for the trying of Pirates in those parts, pursuant to the Acts for the more effectual suppression of Piracy; and by a Commission already sent to Our Province of New York Our Gover- nor there is impowered, together with others therein mentioned, to proceed accordingly in reference to Our said Province; Our Will and Pleasure is that you do use your best endeavours to apprehend all persons whatever, who may have been guilty of Piracy within your Government, or who, having committed such Crimes at other places, may come within your Jurisdiction, and until we shall think proper to direct the like Commission to be established for Our Government at Quebec, you are to send such Pirates, with what proofs of their Guilt you can procure or collect, to Our Governor of New York, to be tryed and punished under the authority of the Commission established for those parts.
45. And whereas you will receive from Our Commissioners for executing the Office of High Admiral of Great Britain and of Our Plantations a Com- mission, constituting you Vice Admiral of Our said Province; you are hereby required and directed carefully to put in execution the several powers thereby granted you.
46. Whereas great Inconveniences have happened heretofore by Merchant Ships and other essels in the Plantations wearing the Colours borne by Our Ships of War, under pretence of Commissions granted to them by the Governors of the said Plantations, and by trading under those Colours, not only among Our own Subjects, but also those of other Princes and States, and committing divers Irregularities, they may very much dishonour Our Service; For preventing thereof, you are to oblige the Com- manders of all such Ships, to which you shall grant Commissions, to wear no other Colours, than such as are described in an Order of Council of the 7**^ of January 1730, in relation to Colours to be worn by all Ships and Vessels, except Our Ships of War.
47. And whereas there have been great Irregularities in the manner of granting Commissions in the Plantations to private Ships of War, you are to govern yourself, whenever there shall be occasion, according to the Com- missions and Instructions granted in this Kingdom; But you are not to grant Commissions of Marque or Reprisal against any Prince or State, or their Subjects in amity with Us to any person whatsoever without Our special Command.
48. Whereas We have been informed, that during the time of War, Our Enemies have frequently got Intelligence of the State of Our Planta- tions by Letters from private persons to their Correspondents in Great Britain, taken on board Ships coming from the Plantations, which hath been of dangerous consequence; Our Will and Pleasure therefore is, that you signify to all Merchants, Planters, and others, that they be very cautious
CONSTITUTIONAL DOCUMENTS 611
SESSIONAL PAPER No. 18
in time of War, whenever that shall happen, in giving any accounts by Let- ters of the public State and Conditions of Our Province under your Govern- ment; and you are further to give directions to all Masters of Ships, or other persons, to whom you may entrust your Letters, that they put such Letters into a Bag with a sufficient weight to sink the same immediately, in case of imminent danger from the Enemy: And you are also to let the Merchants and Planters know, how greatly it is for their Interest, that their Letters should not fall into the hands of the Enemy; and therefore that they should give like Orders to Masters of Ships in relation to their Letters; and you are further to advise all Masters of Ships, that they do sink all Letters, in case of danger, in the manner before mentioned.
49. And whereas the Merchants and Planters in Our Plantations in America, have in time of War, corresponded and traded with Our Enemies, and carried Intelligence to them, to the great prejudice and hazard of Our said Plantations; you are therefore by all possible methods to endeavor to hinder such Trade and Correspondence in time of War.
50. Whereas it is absolutely necessary, that We be exactly informed of the State of Defence of all Our Plantations in America, as well in relation to the Stores of War, that are in each Plantation, as to the Forts and Forti- fications there, and what more may be necessary to be built for the Defence and Security of the same; you are as soon as possible to prepare an account thereof with relation to Our said Province in the most particular manner; and you are therein to express the present State of the Arms, Ammunition, and other Stores of War belonging to the said Province,, either in public Magazines, or in the hands of privatepersons, together with the State of all places either already fortified, or thatyou judge necessary to be fortified for the Security of Our said Province; and you are to transmit the said accounts to Us by one of Our principal Secretaries of State, and also Dupli- cates thereof to Our Commissioners for Trade and Plantations, for their information, and also a Duplicate thereof to Our Master General, or princi- pal Officers of Our Ordinance, which accounts are to express the particulars of Ordinance, Carriages, Balls, Powder, and other sorts of Arms and Am- munition in Our public Stores, and so from time to time of what shall be sent to you, or bought with the public Money; and to specify the time of the disposal, and the occasion thereof; And you are half yearly to transmit a general account of the State of the Fortifications and Warlike Stores specified in the manner above mentioned.
5L And in case of any Distress of any other of Our Plantations, you shall, upon application of the respective Governors thereof unto you, assist them with what aid the condition and safety of Our Province under your Government can spare.
52. If any thing shall happen, which may be of advantage or security to Our Province under your Government, which is not herein, or by your Commission provided for. We do hereby allow unto you, with the advice and consent of Our Council, to take order for the present therein, giving
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unto Us, by one of Our principal Secretaries of State, speedy notice thereof, that you may receive Our Ratification, if We shall approve the same; Provided always, that you do not by colour of any power or authority hereby given you, commence or declare War without Our Knowledge and particular Commands therein; and you are also to transmit a Duplicate of such notice, as aforesaid, to Our Commissioners for Trade and Plantations for their information.
53. And whereas We have by the first article of these Our Instructions to you directed and appointed, that your chief Residence shall be at Quebec, you are nevertheless frequently to visit the other parts of your Government, in order to inspect the management of all public affairs, and thereby the better to take care, that the Government be so administered, that no dis- orderly practices may grow up contrary to Our Service and the welfare of Our Subjects.
54. And whereas great prejudice may happen to Our Service, and the security of the Province by your absence from those parts, you are not upon any pretence whatsoever to come into Europe without having first obtained leave for so doing from Us under Our Sign Manual and Signet, or by Our Order in Our Privy Council; Yet nevertheless, in case of Sickness, you may go to South Carolina, or any other of Our Southern Plantations, and there stay such a space of time, as the recovery of your Health may absolutely require.
55. And whereas We have thought fit by Our Commission to direct, that, in case of ytour death, or absence from Our said Province, and in case there be at that time no person within Our said Province commissionated or appointed by Us to be Our Lieutenant Governor, or Commander in Chief, that the eldest Councillor, being a natural born Subject of Great Britain, Ireland, or the Plantations, and professing the Protestant Religion, who shall be at the time of your death or absence residing within Our said Province under your Government, shall take upon him the administration of Government, and execute Our said Commission, and Instructions, and the several powers and authorities therein directed; It is nevertheless Our express Will and Pleasure, that in such case the said President shall forbear to pass any Act or Acts, but what are immediately necessary for the Peace and Welfare of the said Province, without Our particular Order for that purpose.
56. And whereas We are desirous, that a proper provision should be made for the support of Our Government within Our said Province of Que- bec, We do therefore hereby declare it to be Our Royal Intention, that the following annual Salaries and Allowances be discharged and paid out of any Revenues arising to Us within the same, or out of such other Monies, as shall be granted or appropriated to the Uses and Services of Our said Province of Quebec, that is to say.
CONSTITUTIONAL DOCUMENTS 613
SESSIONAL PAPER No. 18
£ s. d.
. 2.000 0 0
To the Governor p Annum ^qq q q
To the Lieutenant Governor ^ 200 0 0
To the Chief Justice ■ • • • • • • ^000 0 0
To six Judges of Common Pleas. £500 each 3.oyu u u
To the Attorney General ...- 100 0 0
To the Clerk of the Crown and Pleas 200 0 0
To two Sheriffs at £100 each ^qq q q
To the Secretary and Register ^qq q q
To the Clerk of the Council ^qq q q
To the Surveyor of Lands 200 0 0
To the Surveyor of Woods. 3qq q q
To the Commissary for Indians jqq q q
To the Captain of the Port jqq q q
To the Naval Officer. •■••••••••• 400 0 0
To the Receiver General of the Revenues
To twenty-three Councillors at £100 each. ^'-^^ " "
To the Lieutenant Governors or Supenntendants At the Illinois 1
Poste saint Vincenne I ^ ^^^ ^^^^ ^ 000 0 0
Missilimakinac I
To one Ju^gfof the inferior Courts of King's Bench and Common Pleas
at each of the above five Posts at £100 each Judge 500 0 O
To an Assistant or Assessor at each Post at £50 p Annum 250 0 0
To a Sheriff at each District at £20 p Annum each i^^ u u
To a Grand Voyer * 200 0 0
?°rour"Mini£rofTheP;otestanrChurchat^ 800 0 0
To two Schoolmasters at £100 p. Annum each . • ... . •••••/
To aT Allowance to the Person licenced to superintend the Romish ^^^ ^ ^
To Pens"o?sto the Officers of a Corpsof' Canadians employed in'the last
War. and discharged without any Allowance, as follows. Viz* 200 0 0
To Mons' Rigauville. the Commandant of said Corps 200 0 u
To five Captains £100 each 500 o 0
To ten Lieutenants £50 each . _0 o 0
To the Commandant of the Savages ^^^ ^ 0
To Annual contingent Expenses J
£17,350 0 0
All which Salaries and Allowances are to commence on, and be payable from, and after the first day of May next ensuing.^
57. And whereas We are further willing in the best manner to provide for the support of the Government of Our said Province, by setting apart a sufficient Allowance to such, as shall be Our Lieutenant Governor Com- mander in Chief, or President of Our Council for the time being within the same; Our Will and Pleasure therefore is, that, when it shall happen, that you shall be absent from Our said Province, one full Moiety of the Salary, and of all Perquisites and Emoluments whatsoever, which would otherwise become due unto you, shall, during the time of your absence from Our said Province, be paid and satisfied unto such Lieutenant Governor, Commander
X Among the Dartmouth Papers is an '^Estimate of the Expence of the CivU Establishment of the Province of Quebec, and Its Dependencies." M 385. p. \9^- „^" *°'^^|riSns are the salaries are rated at different amounts from those here given. Among the yf5J,^"°^l,^iX_arv Slowing-Lt. Governor. £800. Chief Justice £1.000; the six J"Jf ^^dSaltT £200 Reeis^e^ for Indians £200 There are two addit onal offices. Judge of the Admiralty. tlVi). ^.egister SthP Court of Admiraltv £100 There was no provision for Schoolmasters, or for Cont ngent E^insS." /romtSeYdocument we find that tL appointments to these positions were divided between Lord Dartmouth, the Treasury Board, and the Governor as follows.-
"Lord Dartmouth-'Lt. Governor. Chief Justice. Secry&Rejster. 3 judges. ^^^^^^ Geni. Clerk of Crown. Commissary for Indian Affairs. Naval Officers. 5 Superintend . 4 Min
isters. 2 Schoolmasters. ^ , „r j td • r n^r.\
TreasMrv— Surveyor of Lands. D° of Woods, ReceiV Lrcn'. cu^^;ffc
GovJnJ-CleVkirConncn. Captain of ye Port. 2 Sheriffs. 5 Judges. 5 Assessors. 5 Sheriffs,
Grand Voyer. French Secretary." M 385, p. 492.
614 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
in Chief, or President of Our Council, who shall be, resident upon the place for the time being, which We do hereby order and allot unto him towards his Maintenance, and for the better Support of the Dignity of that Our Gov- ernment.
G.R.
PLAN FOR THE FUTURE MANAGEMENT OF INDIAN AFFAIRS,
REFERRED TO IN THE THIRTY-SECOND ARTICLE OF THE
FOREGOING INSTRUCTIONS.
1. That the Trade and Commerce with the several Tribes of Indians in North America under the protection of His Majesty shall be free and open to all His Majesty's subjects, under the several Regulations and Restrictions hereafter mentioned, so as not to interfere with the Charter to the Hudson's Bay Company.
2. That for the better Regulation of this Trade, and the Management of Indian Affairs in general, the British Dominions in North America be divided into two Districts, to comprehend and include the several Tribes of Indians mentioned in the annexed Lists A. and B.
3. That no Trade be allowed with the Indians in the southern District, but within the Towns belonging to the several Tribes included in such District ; and that in the Northern District the Trade be fixed at so Many Posts, and in such Situations, as shall be thought necessary.
4. That all Laws, now in Force in the several Colonies for regulating Indian AfTairs, or Commerce, be repealed.
5. That there be one general Agent or Superintendant appointed by His Majesty for each District.
6. That the Agent or Superintendant for the Northern District shall be allowed three Deputies to assist him in the Administration of Afifairs within his District; and that the Agent or Superintendant for the Southern District shall be allowed two Deputies.
7. That there shall be a Commissary, Interpreter, and Smith, appointed by His Majesty to reside in the Country of each Tribe in the Southern District, and at each Post in the Northern District.
8. That it be recommended to the Society for the propagation of the Gospel in foreign parts to appoint four Missionaries in each District, to reside at such places, as the Agent or Superintendant for each District shall recommend.
9. That the Commissaries, Interpreters, and Smiths in each District do Act under the immediate Direction and Orders of the Agent or Superin- tendant, who shall have a power of Suspending them in Case of Misbehav- iour, and, in Case of Suspension of a Commissary, or of a Vacancy by Death, or Resignation, the Office shall be executed, until the King's pleasure is known, by one of the Deputies to the Agent or Superintendant.
CONSTITUTIONAL DOCUMENTS 615
SESSIONAL PAPER No. 18
10. That the said Agent or Superintendant shall have the Conduct of all public Affairs relative to the Indians; and that neither the Commander in Chief of His Majesty's Forces in America, nor any of the Governors and Commanders in Chief of any of the Colonies, or persons having military Commands in any of the Forts within each of the said Districts, do hold any General Meetings with the Indians, or send any public Talks to them without the Concurrence of the Agent or Superintendant, unless in cases of great Exigency, or when the said Agent or Superintendant may be in some remote part of his District.
1 1 . That the said Agents or Superintendants do in all Affairs of political consideration, respecting peace and war with the Indians, purchases of Lands, or other Matters, on which it may be necessary to hold any general Meetings with the Indians, advise and act in concert with the Governors, (or the Governors and Councils, as the Occasion may require), of the several Colonies within their respective Districts; And that the said Agents or Superintendants shall be Councillors extraordinary within each Colony in their respective Districts, in like manner as the Surveyors General of the Customs for the Northern and Southern Districts of America.
12. That the Governor or Commander in Chief of every Colony be directed to communicate to the Agent or Superintendant of that District, within which his Government lyes, all such Information and Intelligence, as he may receive respecting Indian Affairs; And that the Agents or Super- intendants shall in like manner communicate to the Governors all Intelli- gence and Information, respecting the State of Indian Affairs, which may in any wise regard the Security and Interest of the said Colonies.
13. That no Order shall be issued by the Governor or Commander in Chief of any of His Majesty's Colonies, or by any Officer having Military Command in any Forts within the Indian Country, for stopping the Trade with any Tribe of Indians in either of the said Districts, without the Con- currence and Consent of the Agent or Superintendant for Indian Affairs.
14. That the said Agents or Superintendants shall by themselves, or sufficient Deputies visit the several Posts or Tribes of Indians within their respective Districts once in every year, or oftener, as Occasion shall require, to enquire into, and take an Account of the Conduct and Behaviour of the subordinate Officers at the said Posts, and in the Country belonging to the said Tribes; to hear Appeals; and redress all Complaints of the Indians; make the proper Presents; and transact all Affairs relative to the said Indians.
15. That for the maintaining peace and good Order in the Indian Coun- try, and bringing Offenders in criminal Cases to due Punishment, the said Agents or Superintendants, as also the Commissaries at each Post, and in the Country belonging to each Tribe, be empowered to Act as Justices of the Peace in their respective Districts and Departments, with all powers and priviledges vested in such Officers in any of the Colonies ; and also full power of Committing Offenders in Capital Cases, in order that such Of- fenders may be prosecuted for the same; And that, for deciding all civil
2
616 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
actions, the Commissaries be empowered to try and determine in a Summary way all such Actions, as well between the Indians and Traders, as between one Trade and another, to the Amount of Ten Pounds Sterling, with the Liberty of Appeal to the Chief Agent or Superintendant, or his Deputy, who shall be empowered upon such appeal to give Judgement thereon; which Judgement shall be final, and process issue upon it, in like manner as on the Judgement of any Court of Common Pleas established in any of the Colonies.
16. That for the easy attainment of Justice, the evidence of Indians, under proper Regulations and Restrictions, be admitted in all Criminal as well as civil causes, that shall be tried and adjudged by the said Agents or Superintendants, or by the said Commissaries; and that their Evidence be likewise admitted by the Courts of Justice in any of His Majesty's Colonies or Plantations in Criminal cases. Subject to the same Pains and Penalties in Cases of false Evidence, as His Majesty's Subjects.
17. That the said Agents or Superintendants shall have power to Confer such Honors and Rewards on the Indians, as shall be necessary; and of granting Commissions to principal Indians in their respective Districts to be War Captains or Officers of other Military Distinctions.
18. That the Indians of each Town in every Tribe in the Southern District shall choose a beloved Man to be approved of by the Agent or Superintendant for such District, to take care of the Mutual Interests both of Indians and Traders in such Town; and that such beloved Men, so elected and approved in the several Towns, shall elect a Chief for the whole Tribe, who shall constantly reside with the Commissary in the Country of each Tribe, or occasionally Attend upon the said Agent or Superintendant, as Guardian for the Indians and Protector of their Rights, with Liberty to the said Chief to be present at all Meetings and upon all Hearings or Trials relative to the Indians before the Agent or Superintendant, or before the Commissaries; and to give his Opinion upon all Matters under Consider- ation at such Meetings or Hearings.
19. That the like Establishments be made for the Northern District, as far as the Nature of the Civil Constitution of the Indians in this District, and the Manner of Administering civil affairs will admit.
20. That no person having any Military Command in the Indian Country shall be capable of Acting as Commissary for the Affairs of the Indians; in either of the above mentioned Districts respectively; nor shall such person having military Command be allowed to carry on trade with the Indians, or to interpose his Authority in any thing, that regards the Trade with, or civil Concerns of the Indians; but to give the Commissary or other Civil Magistrate all Assistance in his power, whenever thereunto required.
21. That the said Commissaries shall keep exact and regular Accounts, by way of Journal, of all their Transactions and Proceedings, and of all Occurrences in their respective Departments, and shall by every oppor-
CONSTITUTIONAL DOCUMENTS 617
SESSIONAL PAPER No. 18
tunity communicate such Transactions and Occurrences to the Agent or Superintendant in their respective Districts ; which Agent or Superintendant shall regularly by every Opportunity correspond with the Commissioners for Trade and Plantations.
22. That the Agent or Superintendant, to be appointed for each Dis- trict, as also the Commissaries residing at the Posts, or in the Indian Coun- try within each District, shall take an Oath before the Governor or Chief Judge of any of the Colonies within their respective Districts, for the due Execution of their respective Trusts; and they and all other subordinate Officers, employed in the Affairs of the Indians, shall be forbid, under proper Penalties, to carry on any Trade with them, either upon their own Account, or in Trust for others, or to make any Purchase of, or accept any Grants of Lands from the Indians.
23. That for the better regulation of the Trade with the said Indians, conformable to their own Requests, and to prevent those Frauds and Abuses, which have been so long and so loudly complained of in the manner of carrying on such Trade, all Trade with the Indians in each District be carried on under the Direction and Inspection of the Agents or Superintendants, and other subordinate Officers to be appointed for that purpose, as has been already mentioned.
24. That all Persons intending to trade with the Indians shall take out Licences for that purpose under the Hand and Seal of the Governor or Commander in Chief of the Colony, from which they intend to carry on such Trade, for every of which Licences no more shall be demanded or taken than two Shillings.
25. That all persons taking out Licences shall enter into Bond to His Majesty, His Heirs, and Successors in the Sum of with one Surety in the Sum of for the due observance of the Regulations prescribed for the Indian Trade.
26. That every Person willing to give Security, and finding a Security willing, if required, to take an Oath, that he is possessed of property to double the value of the Sum he stands security for, shall be intitled to a Licence.
27. That every such Licenced Trader shall at the time of taking out the Licence, declare the Post or Truck house, at which or the Tribe of Indians with which he intends to trade, which shall be specified in the Licence itself.
28. That no Licence be granted to continue longer than for one Year.
29. That no Person trade under such Licence, but the person named in it, his Servants, or Agents, whose Names are to be inserted in the Margents; and in Case any of the Servants or Agents named in such Licence shall die, or be discharged, the same shall be notified to the Governor, by whom the Licence was granted, or to the Commissary of the Post, or in the Tribe, where such Trader carries on Trade, to the end that the Name or Names of any other Servants or Agents, employed by the said Trader in the place
618 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
of those dead or discharged, may in Hke manner be inserted in the Margent of the Licence.
30. That all Licences be entered in the Secretary's Office, or other proper Office of Record in each Colony, where they are taken out ; for which Entry no more shall be demanded or taken than Six pence for each Licence; and all persons to have free Liberty to inspect such Entry, paying a Fee of Six pence for the same.
3L That Persons trading with the Indians without a Licence, and without giving the Security above required, or trading at any other Posts or places, than those expressed in their Licences, do forfeit all the Goods they shall be found then trading with, and also pay a Fine of to His Majesty, His Heirs, and Successors, and suffer Months
Imprisonment.
32. That all Traders immediately upon Arrival at the posts or Truck houses in the Northern district, or in the Tribes in the Southern district, for which Licences have been taken out, and before any Goods are sold to, or bartered with the Indians, do produce such Licences to the Commissaries appointed for the Direction and Inspection of the Trade at such posts, or Truck houses, or in such Tribes.
33. That all Trade with the Indians shall be carried on by Tariffs, to be settled and Established from time to time by the Commissaries at the several Posts, or Truck houses, or in the Countries belonging to the several Tribes in Concert with the Traders and Indians.
34. That the Commissaries appointed to direct and inspect the Trade at each Truck house in the Northern District, shall be empowered to fix and prescribe Limits round each Post or Truck house, within which Limits all Trade with the Indians may be commodiously carried on in the most public Manner.
35. That all Traders have free Liberty to erect Hutts and Warehouses within such Limits, in such Order and Manner as the Commissary shall, with the concurrence of the Officer Commanding at such Post, Direct and appoint.
36. That no Trader shall Traffic, or have any Dealings with the Indians without the Limits prescribed by the Commissary or other Chief Officer appointed for the Inspection and Direction of the Trade.
37. That each Truck house or post of Trade in the Northern District be fortified and garrisoned ; and that all Traders have free Liberty to retire into such Garrison with their Effects, when ever any Disturbance shall Arise, or the Commissary at such post shall represent it to be necessary.
38. That no Trader shall sell or otherwise supply the Indians with Rum, or other spirituous Liquors, Swan Shot, or rifled Barrelled Guns.
39. That in Trade with the Indians no Credit shall be given them for Goods in Value beyond the Sum of fifty Shillings ; and no Debt beyond that Sum shall be recoverable by Law or Equity.
J
CONSTITUTIONAL DOCUMENTS 619
SESSIONAL PAPER No. 18
40. That all Disputes concerning Weights or Measures in the buying or selling Goods shall be decided by Standard Weights and Measures, to be kept in each Post or Truck-house in the Northern District, and in each Tribe in the Southern District.
41. That no private person. Society, Corporation, or Colony be capable of acquiring any Property in Lands belonging to the Indians, either by purchase of, or Grant, or Conveyance from the said Indians, excepting only where the Lands lye within the Limits of any Colony, the soil of which has been vested in proprietors, or Corporations by Grants from the Crown; in which Cases such Proprietaries or Corporations only shall be capable of acquiring such property by purchase or Grant from the Indians.
42. That proper Measures be taken, with the Consent and Concurrence of the Indians, to ascertain and define the precise and exact Boundary and Limits of the Lands, which it may be proper to reserve to them, and where no Settlement whatever shall be allowed.
43. That no purchases of Lands belonging to the Indians, whether in the Name and for the Use of the Crown, or in the Name and for the Use of proprietaries of Colonies be made but at some general Meeting, at which the principal Chiefs of each Tribe, claiming a property in such Lands, are present ; and all Tracts, so purchased, shall be regularly surveyed by a Sworn Surveyor in the presence and with the Assistance of a person deputed by the Indians to attend such Survey ; and the said Surveyor shall make an accurate Map of such Tract, describing the Limits, which Map shall be entered upon Record, with the Deed of Conveyance from the Indians.
It is estimated, that the annual Expence of supporting the Establish- ments, proposed in the foregoing plan, providing presents for the Indians, and other contingent Expences, may amount to about twenty thousand pounds ; and it is proposed to defray this Expence by a Duty upon the Indian Trade, either collected upon the Exportation of Skins and Furs, (Beaver excepted,) from the Colonies, or payable by the Traders at the posts and places of Trade, as shall, upon further Examination and the fullest Information, be found most practicable, and least burthensome to the Trade.
A.
List of Indian Tribes in the northern District of North America.
Mohocks. Powtewatamis.
Oneidas. Ottav/as.
Tuscaroras. Chipeweighs, or Missisagis.
Onondagas. Meynomenys.
Cayugas. Folsavoins.
Senecas. Puans.
Oswegachys. Sakis.
Nanticokes. Foxes.
Conoys. Twightwees.
620 CANADIAN A RCHI VES
6-7 EDWARD VII., A. 1907
Tuteeves. Kickapous.
Saponeys. Mascoutens.
Caghnawagas. Piankashaws.
Canassadagas. Wawiaghtonos.
Arundacks. Keskeskias.
Algonkins. Illinois.
Abenaquis. Sioux.
Skaghquanoghronos. Micmacs.
Hurons. Norwidge walks.
Shawanese. Arseguntecokes.
Delawares. Penobscots.
Wiandots. S* John's.
B.
List of Indian Tribes in the southern District of North America. Cherokees. Attucapas.
Creeks. Bayugtas.
Chickasaws. Tunicas.
Chactaws Peluches
Catawbas, Ofugulas.
Beluxis. Querphas.
Endorsed : Dr*
Instructions for Guy Carleton Esq' Gov' of Quebec, Dated 3^ Jan^ 1775. In Order of Council of 28''^ Decern' 1774.
George R CO.
INSTRUCTIONS RELATING TO TRADE AND NAVIGATION^
(Instructions 1774-1778.) 4
[L.S.] Orders and Instructions to Our Trusty and Well beloved Guy Carleton Esquire Our Captain General and Governor in Chief in and over Our Province of Quebec in America, In pursuance of several Laws relating to the Trade and Navigation of this Kingdom of Great Britain and our Colonies and Plantations in America, Given at Our Court at S* James's the Third Day of January 1775. In the Fifteenth year of Our Reign. —
First You shall inform yourself of the principal Laws relating to the Plantation Trade, and shall take a solemn Oath to do your utmost that all the Clauses, Matters, and Things contained in all Acts of Parliament now in force, or that hereafter shall be made relating to Our Colonies or Plan-
' Canadian Archives, M 230, p. 177. These Instructions were furnished to all the Colonial Governors and contain a summary of the famous Navigation Acts, which express the essence of the whole Colonial System of the time, and show how limited, in point of law at least, was the outlet for the colonies even in regard to intercolonial, not to mention foreign intercourse.
CONSTITUTIONAL DOCUMENTS 621
SESSIONAL PAPER No. 18
tations be punctually and bont fide observed according to the true intent and meaning thereof.
2^ And whereas, by an Act made in the Seventh and Eighth Years of the Reign of King William the Third, intituled "An Act for preventing "Frauds, and regulating abuses in the Plantation Trade" the Officers appointed for the performance of certain things mentioned in an Act passed in the fifteenth year of the Reign of King Charles the Second, intituled "An Act for the encouragement of Trade" commonly known by the Name of the Naval Officers, are to give security to the Commissioners of our Customs in Great Britain for the Time being, or such as shall be appointed by them, for Our use, for the true and faithful performance of their duty, you, shall take care, that the said Naval Officers do give Security to the said Commissioners of Our Customs or the Persons appointed by them, who are impowered to take the same in the manner thereby enjoined, and that he or they produce to you a certificate from them, of his, or their having given Security pursuant to a Clause in the said Act, and you are not to admit any Person to act, as Naval Officer who does not within two Months, or as soon as conveniently may be, after he has enter'd upon the execution of his Office, produce a Certificate of his having given such Security as aforesaid.
?>^ And whereas it is necessary for the more effectual dispatch of Merchants and others, that the Naval Officers and the Collectors of the Customs should reside at the same Ports or Towns, you are therefore to take care, that this regulation be observed,* and to consult with the Surveyor General of Our Customs, in what place it may be most convenient to have the Custom-House fixed in part of his District ; and to take Care, that the Collector and Naval Officer reside within a convenient Distance of the Custom-House for the Dispatch of Business.
4. Whereas by the Act for the encouraging and increasing of Shipping and Navigation passed in the twelfth year of the reign of King Charles the Second, no Goods or Commodities whatsoever are to be imported into, or exported out of any of Our Colonies or Plantations in any other ships or Vessels whatsoever, but in such as do truly and without Fraud belong only to Our People of Great Britain, or Ireland, or are of the Built of, and belong- ing to any of Our Lands, Islands, or Territories, as the Proprietors and right Owners thereof, and whereof the Master and three fourths of the Mariners at least are British under the Penalty of the forfeiture and loss of all the Goods and Commodities, which shall be imported into, or exported out of any of the said Places in any other Ship or Vessel, as also of the Ship or Vessel with her Guns, Furniture &c : And whereas by a Clause in the Act for preventing Frauds, and regulating Abuses in the Customs passed in the thirteenth and fourteenth years of the reign of King Charles the Second, no foreign built Ship, that is to say, not built in any of Our Dominions of
* This addition to the S^ Article found in the Trade Instructions to Carleton, 1768. Privy Council Office Plantation Book. 1767-1771.
622 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Asia, Africa, and America shall enjoy the Privilege of a Ship belonging to Great Britain or Ireland, although owned and manned by British Subjects, (excepting such Ships only as shall be taken at Sea by Letters of Mart, or Reprizal, and Condemnation thereof made in Our Court of Admiralty as lawful Prize,) but all such Ships shall be deemed as Aliens Ships, and be liable to all duties that Aliens Ships are liable to by Virtue of the aforesaid Act, for the encouraging and increasing of Shipping and Navigation : And whereas by a Clause in the Act for preventing Frauds and regulating Abuses in the Plantation Trade, it is enacted that no Goods or Merchandizes whatsoever shall be imported into or exported out of any of Our Colonies or Plantations in Asia, Africa, or America, or shall be laden in, or carried from any one Port or place in the said Colonies or Plantations to any other Port or Place in the same, or to Our Kingdom of Great Britain in any Ship or Bottom but what is or shall be of the Built of Great Britain, or Ireland, or of the said Colonies or Plantations, and wholly owned by the People thereof, or any of them, and navigated with the Master and three fourths of the Mariners of the said Places only, except such Ships only, as shall be taken as Prize, and Condemnation thereof made in One of the Courts of Admir- alty in Great Britain, Ireland, or the said Plantations to be navigated by the Master and three fourths of the Mariners British, or of the said Plant- ations as aforesaid, and whereof the Property does belong to British Sub- jects, on pain of forfeiture of Ship and Goods ; And whereas by another Clause in the said Act for the more effectual prevention of Frauds, which may be used by colouring foreign Ships under British Names : It is further enacted, that no Ship or Vessel whatsoever shall be deemed or pass as a Ship of the Built of Great Britain, Ireland, Guernsey, Jersey, or any of Our Plantations in America, so as to be qualified to trade to, from, or in any of the said Plantations, until the Person or Persons claiming property in such Ship or Vessel shall register the same in manner thereby appointed : You shall take care and give in charge that these Matters and things be duely observed within Our said Province under your Government according to the true intent and meaning of the said Acts & the Offences & Offenders prosecuted according to the directions thereof, and where it is required, that the Master and three fourths of the Mariners be British ; You are to understand, that the true intent and meaning thereof is, that they shall be such during the whole Voyage unless in case of Sickness, Death, or being taken Prisoners in the Voyage to be proved by the Oath of the Master or other Chief Officer of the Ship, and none but Our Subjects of Great Britain, Ireland, or the Plantations are to be accounted British.
5. Whereas, by the said Act of Navigation, as the same stands amended and altered by the aforesaid Act for regulation of the Plantation Trade, it is enacted that for every Ship or Vessel, which shall set Sail out of, or from Great Britain for any British Plantation in America, Asia, or Africa, suffi- cient Bond shall be given with one Surety to the chief Officer of the Customs of such Port or Place, from whence the said Ship shall set sail, to the value
CONSTITUTIONAL DOCUMENTS 623
SESSIONAL PAPER No. 18
of One thousand Pounds if the Ship be of less burthen, than one hundred Tons, and of the Sum of two thousand Pounds, if the Ship shall be of greater Burthen: That in case the said Ship or Vessel shall load any of the Com- modities therein enumerated. Viz* Sugar, Tobacco, Cotton Wool, Indigo, Ginger, Fustick or other dying Wood, of the growth, production, or Manu- facture of any British Plantation in America, Asia, or Africa, at any of the said British Plantations, the said Commodities shall by the said Ship be brought to some Port of Great Britain, and be there unladen and put on Shore, the danger of the Seas only excepted ; and for all Ships coming from any Port or Place to any of the aforesaid Plantations which by this Act are permitted to trade there, that the Governors of such British Plantations shall before the said Ship or Vessel be permitted to load on board any of the said Commodities, take Bond in manner and to the value aforesaid for each respective Ship or Vessel, that such Ship or Vessel shall carry all the afore- said Goods, that shall be laden on board the said Ship or Vessel, to some other of the said British Plantations, or to Great Britain; and that every Ship or Vessel which shall load or take on board any of the aforesaid Goods, until such Bond be given to the said Governor, or Certificate produced from the Ofificers of any Custom House of Great Britain, that such Bond hath there been duly given, shall be forfeited with her Guns, Tackle, Apparel, and Furniture, to be employed and recovered, as therein is directed : And whereas by two Acts passed in the Third & Fourth years of the Reign of Queen Anne, the one intituled, "An Act for the encouraging the importation of "Naval Stores from Her Majesty's Plantations in America," and the other for granting to Her Majesty "a further Subsidy on Wines and Merchandizes "imported;" And by two other Acts passed in the Eighth year of the reign of King George the first, the one intituled "an Act for the encouragement of "the Silk Manufactures of this Kingdom, and for taking off several duties "on Merchandizes exported, and for reducing the Duties upon Beaver "Skins, Pepper, Mace, Cloves, and Nutmegs imported, and for importation "of all Furs of the product of the British Plantations into this Kingdom "only" the other intituled "An Act to prevent the clandestine running of "Goods &c and to subject Copper Ore of the production of the British "Plantations to such Regulations as other enumerated Commodities of "the like production are subject continued by An Act passed in the Eighth year of His said late Majesty's Reign ; and still in force, all Rice (except under the Regulations prescribed in the Acts of the third year of His late Majesty's Reign, and the fourth and fifth years of our Reign, Molasses, Furs, Hemp, Pitch, Tar, Turpentine, Masts, Yards, Bowsprits, and Copper Ore, and by An Act passed, in the fourth year of Our Reign, all Coffee, Pimento, Cocoa Nuts, Whale Fins, Raw Silk, Hides, and Skins, Pot, and Pearl Ashes of the growth, production, or Manufacture of any British Colony or Plantation in America, under the like Securities and Penalties restrained to be imported into this Kingdom as the other above mentioned enumerated Commodities, And whereas by an Act passed in the fifth year of
624 CANADIAN A RCHI VES
6-7 EDWARD VII., 1907
Our Reign, intituled "An Act for more effectually preventing the Mischiefs "arising to the Revenue and Commerce of Great Britain and Ireland from "the illicit and clandestine Trade to, and from the Isle of Man" no Rum or other Spirits shall be shipped or laden in any British Colony or Plantation in America, but on condition that the same shall not be carried to, or landed in the Isle of Man, under the like Securities, Penalties, and Forfeitures ; And whereas by another Act made in the Sixth year of Our Reign, intituled "An Act for opening and establishing certain Ports in the "Islands of Jamaica, and Dominica, for the more free importation and "exportation of certain Goods and Merchandizes, for granting certain Duties "to defray the expences of opening, maintaining, securing, and improving "such Ports, for ascertaining the duties to be paid upon importation of Goods "from the said Island of Dominica into this Kingdom, and for securing "the Duties upon Goods imported from the said Island into any other "British Colony" all Wool, Cotton-Wool, Indigo, Cochineal, Fustick, and all manner of dying Drugs, or Woods, Drugs used in Medicine, Hairs, Furs, Hides and Skins, Pot and Pearl Ashes, Whalefins, and Raw Silk, of the growth and produce of any foreign Colony, or Plantation, shall upon the exportation thereof from either of the said Islands of Dominica or Jamaica, be imported from thence directly into Great Britain, under the like Securi- ties, Penalties, and Forfeitures, and by the said Act of the sixth year of Our Reign, no Goods whatever shall, or may be exported from the said Island of Dominica, to any Port of Europe to the northward of Cape Finisterre, except to Great Britain, and such Goods shall be there landed under the same Securities, Regulations and restrictions and subject to the like Penalties and Forfeitures, you are therefore to take particular Care, and give the necessary directions that the true intent and meaning of all the said Acts be strictly and duly complied with.
6. You shall carefully examine all Certificates which shall be brought to you of Ships giving Security in this Kingdom to bring their Lading of Plantation Goods hither, as also Certificates of having discharged their Lading of Plantation Goods in this Kingdom, pursuant to their Securities ; And whereas the better to prevent any of the aforesaid Certificates from being counterfeited, the Commissioners of Our Customs have thought fit to sign the same. It is therefore Our Will and Pleasure, that no such Certi- ficates be allowed of, unless the same be under the hands and Seals of the Customer, Comptroller, and Collector of the Customs in some Port in this Kingdom or two of them, as also under the hands of four of the Commis- sioners of the Customs at London, or three of Our Commissioners of the Customs at Edinburgh, and where there shall be reasonable ground of Suspicion, that the Certificate of having given Security in this Kingdom is false and counterfeit, in such case, you or the Person or Persons appointed under you shall require and take sufficient Security for the discharge of the Plantation Lading in this Kingdom, and where there shall be cause to suspect that the Certificate of having discharged the Lading of Plantation Goods
CONSTITUTIONAL DOCUMENTS 625
SESSIONAL PAPER No. 18
in this Kingdom is false and counterfeit, you shall not cancel or vacate the Security given in the Plantations, until you shall be informed from the Commissioners of Our Custom in Great Britain, that the Matter of the said Certificate is true ; And if any Person or Persons shall counterfeit, raze, or falsify any such Certificate for any Vessel or Goods, or shall knowingly or wittingly make use thereof, you shall prosecute such Person for the for- feiture of the Sum of five hundred Pounds according to the Clause of the aforesaid Act for preventing Frauds, and regulating Abuses in the Plantation Trade ; and pursuant to the said Act you shall take care, that in all such Bonds to be hereafter given or taken in the Province under your Govern- ment, the Sureties therein named be persons of known residence and ability there, for the value mentioned in the said Bonds, and that the Condition of the said Bonds be within eighteen Months after the Date thereof, the danger of the Seas excepted, to produce a Certificate of having landed and discharged the Goods therein mentioned in One of Our Plantations, or in this Kingdom, otherwise to attest the Copy of such Bonds under your hand and Seal, and to cause Prosecution thereof. And it is Our further Will and Pleasure that you do give Directions to the Naval Officer or Officers not to admit any Person to be Security for another, who had Bonds standing out and undischarged, unless he be esteemed responsible for more than the Value of such Bonds.
7. And you are also to give Directions to the said Naval Officer or Officers to advise with the Collector of the Port or District in taking Bonds, and not to admit any Person to be Security in any Plantation Bond until approved by the said Collector ; And whereas Lists of all Certificates, granted in South Britain for the discharge of Bonds given in the Plantations, are every Quarter sent to the Collectors of the Districts, where such Bonds are given, the said Naval Officer or Officers is, or are to take care, that no Bond be discharged or cancell'd by him or them without first advising with the Collector, and examining the said List ; to see that the Certificate is not forged or counterfeited ; And whereas the Principal Officers of Our Customs in America are directed to examine from time to time, whether the Plantation Bonds be duly and regularly discharged, you are to give directions, that the said Officers be permitted to have recourse to the said Bonds, as well as the Book or Books in which they are or ought to be entered and to examine as well whether due Entry thereof be made, as whether they are regularly taken and discharged, and where it shall appear, that Bonds are not regularly discharged, you are to order that, such Bond be put in Suit.
8. You are to understand that the Payment of the rates and Duties imposed by An Act intituled, "An Act for the encouragement of the Green- "land and Eastland Trades ; and for the better securing the Plantation "Trade" passed in the twenty fifth Year of the Reign of King Charles the Second, on the several Plantation Commodities therein enumerated doth not give Liberty to carry the said Goods to any other Place, than to some
626 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
of Our Plantations, or to Great Britain only, and that, notwithstanding the Payment of the said Duties, Bond must be given to carry the said Goods to some of the said Plantations, or to Great Britain, and to no other Place.
9. You shall every three Months, or oftener, or otherwise as there shall be opportunity of Conveyance, transmit to the Commissioners of Our Treasury, or our High Treasurer for the Time being, and to the Commis- sion" of Our Customs in London, a list of all Ships and Vessels trading in the said Province according to the Form and Specimen hereunto annexed, together with a List of the Bonds taken, pursuant to the Act passed in the twenty second and twenty third years of King Charles the Second's reign, intituled "An Act to prevent planting Tobacco in England ; and for regulat- "ing the Plantation Trade ;" and you shall cause Demand to be made of every Master at his clearing of an Invoice of the Contents and Quality of his Lading &c, according to the Form hereunto also annexed, and inclose a Copy thereof by some other Ship, or for want of such Opportunity by the same Ship under Cover, sealed, and directed to the Commissioners of Our Treasury, or Our High Treasurer for the Time being, and to the Commis- sioners of Our Customs in London, and send another Copy of the said Invoice in like manner to the Collector of that Port, in this Kingdom for the Time being, to which such Ship shall be said to be bound.
10. Whereas by the aforesaid Act for the Encouragement of Trade, no Commodities of the Growth, Production, or Manufacture of Europe, except Salt for the Fishery of New England and Newfoundland, Wines of the growth of y° Madeira's or Western Islands or Azores, Servants and Horses from Ireland and all sorts of Victuals of the growth and production of Ireland, and salt to the Provinces of Pennsylvania, New- York, Nova Scotia, and Quebec, in pursuance of five Acts passed in the Thirteenth year of the reign of King George the First, in the Third year of His late Majesty's reign, and in the Second, Fourth and Sixth years of Our Reign, shall be imported into any of Our Colonies or Plantations, but what shall be boni fide, and without Fraud Laden and Shipped in Great Britain, and in Ships duly qualified, you shall use your utmost endeavour for the due observation thereof ; and if contrary hereunto any Ship or Vessel shall import into our said Province under Your Government any Commodities, of the growth, production, or Manufacture of Europe, but what are before excepted, of which due Proof shall not be made, that the same were Shipped or Laden in some port of Great Britain by producing Cocquets or Certificates under the hands and Seals of the Officers of Our Customs in such Port or Place where the same were Laden, such Ship or Vessel and Goods shall be for- feited ; and you are to give in Charge, that the same be seized and prose- cuted accordingly.
IL And in order to prevent the acceptance of forged Cocquets or Certificates which hath been practised to Our great Prejudice, you are to give effectual Orders, that for all such European Goods as by the said Act
CONSTITUTIONAL DOCUMENTS 627
SESSIONAL PAPER No. 18
are to be shipp'd and laden in Great Britain Cocquets for the same from hence be produced to the Collectors or other Ofificers of Our Customs in Our aforesaid Province under your Government for the Time being, before the unlading thereof, and you shall give Order that no European Goods be landed but by Warrant from the said Collector in the Presence of an Officer appointed by him, and for the better prevention of Frauds of this Kind you shall take care, that according to the said Act of Trade, no Ship or Vessel shall be permitted to lade or unlade any Goods or Commodities whatsoever, until the Master or Commander thereof shall first have made known to you, or such Officer, or other Person as shall be thereunto authorized and appointed, the arrival of such Ship or Vessel, with her Name, and the Name and Surname of the Master, and hath shown, that she is a Ship duly navigated, and otherwise qualified according to Law, and hath deliver'd to you, or such other Person, as aforesaid, a true, and perfect Inventory of her lading, together with the Place or Places, in which the said Goods were laden, and taken into the said Ship or Vessel, under forfeiture of such Ships and Goods.
12. You shall not make or allow of any laws. Bye Laws, Usages or Customs in Our said Province under your Government, which are repugnant to the Laws herein before mentioned, or any of them or to any other Law already made or hereafter to be made in this Kingdom, so far as such Laws relate to, and mention the said Plantations, but you shall declare all such Laws, Bye Laws, Usages, or Customs in Our said Province under Your Government, which are any wise repugnant to the said Laws, or any of them, to be illegal, null and void, to all intents and Purposes whatsoever
13. You shall be aiding and assisting to the Collector and other Officers, of Our Admiralty, and Customs appointed, or that shall hereafter be appoint- ed by the Commissioners of Our Customs in this Kingdom, by and under the Authority and Direction of the Commissioners of Our Treasury, or Our High Treasurer of Great Britain for the time being, or by Our High Admiral or Commiss''^ for executing the Office of High Admiral of Great Britain for the Time being, in putting in execution the several Acts of Parliament before mentioned ; and you shall cause due Prosecution of all such Persons, as shall any ways hinder or resist any of the said Officers of Our Admiralty or Customs in the performance of their duty. It is likewise our Will and Pleasure, and you are hereby required by the first Opportunity to move the Legislative Council of Our said Province that they provide for the expence of making Copies for the principal Officers of Our Customs, in Our said Province for the time being, of all Acts and Papers, which bear any relation to the Duty of their Office ; and in the mean time you are to give Orders, that the said Officers for the time being as aforesaid, be allowed a free inspection in the publick Offices within Your Government of all such Acts and Papers without paying any Fee or Reward for the same.
14. Whereas the Commissioners appointed for collecting the Six Pence per Month from Seamen's Wages for Our Royal Hospital at Green-
628 CANADIAN ARCHIVES
6-7 EDWARD VII., A.19 07
wich, pursuant to an Act of Parliament passed in the second year of His late Majesty's Reign, intituled "An Act for the more effectual collecting "in Great Britain and Ireland, and other parts of His Majesty's Dominions "the duties granted for the Support of the Royal Hospital at Greenwich," have given Instructions to their receivers in foreign Ports for their Govern- ment therein. It is therefore Our Will and Pleasure, that you be aiding and assisting to the said Receivers in your Government in the due execution of their Trusts.
15. And whereas by an Act passed in the Sixth year of His late Majesty's reign, intituled "An Act for the better securing and encouraging the Trade "of His Majesty's Sugar Colonies in America" and by another Act passed in the fourth year of Our Reign, intituled "An Act for granting certain "duties in the British Colonies and Plantations in America &c^" Duties are laid on all Sugar Panales, and several other Species of Goods therein enum- erated of the Produce & Manufacture of any of the Plantations, not in Our Dominion, which shall be imported into any Our Colonies or Plantations ; notwithstanding which, we are informed, that great Quantities of foreign Sugar, Paneles, and other Goods mentioned in the aforesaid Acts, are clandestinely landed in Our Plantations without Payment of the said Duties. Our Will and Pleasure is, that you be aiding and assisting to the Collectors and other Officers of Our Customs, in Your Government, in collecting the said Duties, and seizing all such Goods, as shall be so clan- destinely landed, or put on Shore without paym* of the Duties, and you shall cause due Prosecution of all such Sugar Paneles, and other Goods, as shall be seized for Non Payment of the Duties, as well as the Persons aiding or assisting in such unlawful Importations, or that shall hinder, resist, or molest the Officers in the due Execution of the said Laws, and you are to observe that Our share of all Penalties and Forfeitures, so re- covered is pursuant to the said Act made in the fourth year of Our Reign to be paid into the hands of Our Collector of the Customs at the Port or Place, where the same shall be recovered for Our Use.
16. You shall take care that upon any Actions, Suits, and Informations that shall be brought, commenced or entered in Our said Province under your Government upon any Law or Statute concerning Our Duties, or Ships, or Goods, to be forfeited by reason of any unlawful Importations or Export- ations there be not any Jury, but of such as are Natives of Great Britain, or Ireland, or are born in any of Our said Plantations.
17. You shall take care that all places of Trust in the Courts of Law, or in what relates to the Treasury of our said Province under your Govern- ment, be in the Hands of Our Native-born Subjects of Great Britain or Ireland or the Plantations.
18. And that there may be no Interruption or Delay in matters of Prosecution and Execution of Justice in Our Courts of Judicature within Our said Province under your Government by the death or removal of any of Our Officers employed therein until We can be advised thereof, and appoint
CONSTITUTIONAL DOCUMENTS 629
SESSIONAL PAPER No. 18
others to succeed in their Places, you shall make choice of Persons of known Loyalty, Experience, Diligence, and Fidelity to be employed for the purposes aforesaid until you shall have Our Approbation of them or the Nomination of others from hence.
19. You shall from time to time correspond with the Commissioners of Our Customs in London for the Time being, and advise them of all Fail- ures, Neglects, Frauds, and Misdemeanours of any of the Officers of Our Customs in Our said Province under your Governm* and shall also advise them, as occasion shall offer, of all occurrences necessary for their Infor- mation relating either to the aforesaid Laws of Trade and Navigation, or to Our Revenue of Customs and other Duties under their management, both in Great Britain and the Plantations.
20. If you shall discover, that any Persons or their Assigns claiming any Right or Propriety in any Island or Tract of Land in America, by Char- ter or by Letters Patent shall at any time hereafter, alien, sell or dispose of such Island, Tract of Land, or Propriety other than to Our natural born Subjects of Great Britain, without the Licence or Consent of Us, our Heirs, or Successors signified by Our or their Order in Council first had and ob- tained. You shall give Notice thereof to Us, and to Our Commissioners of Our Treasury or to Our High Treasurer of Great Britain for the Time being.
2L Whereas by the aforesaid Act for preventing Frauds, and regulating Abuses in the Plantation Trade, it is provided for the more effectual pre- vention of Frauds which may be used to elude the Intention of the said Act by colouring foreign Ships under British Names ; That no Ship or Vessel shall be deemed or pass as a Ship of the Built of Great Britain or Ireland, Guernsey, Jersey, or any of Our Plantations in America, so as to be qualified to Trade to, from, or in any of Our said Plantations until the Person or Persons claiming Property in such Ship or Vessel shall register the same in manner thereby directed, You shall take care that no foreign Built Ships be permitted to pass as a Ship belonging to Our kingdom of Great Britain, or Ireland, until proof be made upon Oath of one or more of the owners of the said Ship before the Collector or Comptroller of Our Customs in such Port to which she belongs or upon like Proof before yourself, with the principal Officer of Our Revenue residing in Our aforesaid Province, under your Government, if such Ships shall belong to the said Province which Oath you, and the Officers of Our Customs respectively are authorized to administer in manner thereby directed, and being attested by you and them so administering the same, and registered in due form according to the specimen hereunto annexed, you shall not fail immediately to transmit a Duplicate thereof to the Commissioners of Our Customs in London in order to be entered in a general register to be there kept for that purpose with Penalty upon every Ship or Vessel trading to, from, or in any of Our said Plantation in America as aforesaid, and not having made Proof of her Built and Property, as by the afore-mentioned Act is directed, and shall be
630 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
liable to such Prosecution and Forfeiture as any Foreign Ship (except Prize condemned in Our high Court of Admiralty) would for trading with our Plantations, by the said Law be liable unto, with this Proviso, that all such Ships as have been or shall be taken at Sea, by Letters of Marque or Reprizal and Condemnation thereof made in Our High Court of Admiralty as lawful Prize, shall be especially registered, mentioning the Capture and Condemnation instead of the Time and Place of Building, with Proof also upon Oath, that the entire Property is British before any such Prize be allowed the privilege of a British Built Ship according to the meaning of the said Act, And that no Ships Name registered be afterwards changed without registering such Ship de Novo, which by the said Act is required to be done upon any Transfer of Property to another Port, and delivering up the former Certificate to be cancelled, under the same Penalties, and in like Method and in case of any Alteration of Property, in the same Port, by the Sale of one or more Shares in any Ship after registering thereof, such Sale shall always be acknowledged by Endorsement on the Certificate of Register before two Witnesses, in order to prove, that the entire property in such Ship remains to some of Our Subjects of Great Britain, if any Dispute shall arise concerning the same.
22. Whereas by the Act passed in the Twenty first year of His late Majesty's Reign for encouraging the making of Indigo in the British Plan- tations in America, as the same stands continued & amended by an Act passed in the third year of Our Reign, a premium of four pence p Pound is allowed on the Importation of Indigo of the Growth of the British Plan- tations; and there are likewise contained in the said Act several Provisions to prevent Frauds, by importing foreign Plantation-made Indigo, or any false Mixtures in what is made in the British Plantations, with a view to recover the said Premium ; It is therefore Our Will & Pleasure, that if there now are, or hereafter shall be any Plantations of Indigo within Our said Province under your Government, you do take particular Care, that the said Provisions be duly and punctually complied with, and do likewise from time to time transmit to us, by One of Our Principal Secretaries of State, an Account of all such Plantations of Indigo, with the Names of the Planters, and the Quantity of Indigo they make, as also the Quantity of such Indigo exported from the said Province, distinguishing the time, when exported, and the Port where shipped, the Names of the Vessels, and the Port, to which bound ; and if there be any foreign Indigo imported into the said Province, It is Our further Will & Pleasure, that you do in like manner transmit an Account of such foreign Indigo imported, distinguishing the time when, and the Place from whence imported, together with an Account of such foreign Indigo exported, and the Port where shipped, the Names of the Vessels, and the Port to which bound.
23. Whereas by the Act passed in the tenth year of the Reign of King William the Third, "to prevent the Exportation of Wool out of the Kingdom "of Ireland, and England into foreign Parts, and for the Encouragement
CONSTITUTIONAL DOCUMENTS 631
SESSIONAL PAPER No. 18
"of the Woollen Manufactures in the Kingdom of England," It is amongst other Things, therein enacted, that no Wool, Woolfels, Shortlings, Mort- lings, Wool-flocks, Worsted-Bays, or Kerseys, Says, Friezes, Druggets, Cloth Serges, Shalloons, or any other Drapery Stuffs, or Woollen Manu- factures whatsoever made or mixed with Wool or Woolflocks, being of the Product or Manufacture of any of the British Plantations in America, shall be laden or laid on board in any Ship or Vessel in any Place or Port within any of the said British Plantations, upon any pretence whatsoever, as also that no such Wool, or other the said Commodities, being of the product or Manufacture of any of the said British Plantations, shall be loaden upon any Horse, Cart, or other Carriage, to the intent & purpose to be exported, transported, carried or conveyed out of the said British Plantations to any other of our Plantations, or to any other place whatsoever, upon the same & like Pains, Penalties & Forfeitures to, and upon all the Offender and Offenders therein, within all and every of Our said British Plantations respectively, as are provided and prescribed by the said Act for the like Offences committed within Our Kingdom of Ireland ; You are to take effectual Care, that the true Intent & Meaning thereof, so far forth as it relates to you, be duly put in Execution.
24. In the Act made in the twenty fourth year of His late Majesty's Reign, "for the more effectually securing the Duties upon Tobacco," there is a Clause to prevent Frauds in the Importation of Bulk-Tobacco, enacting that no Tobacco shall be imported into this Kingdom, otherwise than in Cask, Chest, or Case, containing Four Hundred & fifty Pounds Weight of Tobacco each, under Penalty of the Forfeiture thereof ; you shall take care, that this part of the said Act be made publick, that none may pretend Ignorance : and that the true Intent & Meaning thereof be duly put in execution within your Government.
25. And Whereas His Majesty King George the First was informed, that a Clandestine Trade had been carried on, as well by British as foreign Ships from Madagascar, and other Parts beyond the Cape of Bona Esperanza within the Limits of Trade granted to the united East India Company, directly to Our Plantations in America, to the great Detriment of these Realms, and in breach of the several Laws in force relating to Trade & Navigation, Our Will & Pleasure is, that you, the said Guy Carleton, or in your Absence the Commander in Chief of Our said Province of Quebec for the time being, duly observe and cause to be strictly observed the several Laws & Statutes now in force for the regulating of Trade and Navigation, particularly the several Acts of Parliament already mentioned in your general and these Instructions ; and in order to the better Execution of the Laws & Statutes abovementioned, upon the first notice of the Arrival of any Ship or Ships within the Limits of any Port of, or belonging to your Government, which have or are suspected to have on board any Negroes, Goods, or Commodities of the Growth, Produce or Manufacture of the East Indies, Madagascar, or any Parts or Places beyond the Cape of Bona
632 CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
Esperanza, within the Limits of Trade granted to the United East India Company, pursuant to the aforementioned Act of the Ninth & Tenth of King William, you shall immediately cause the Officers of our Customs in your Government, and any other Officers or Persons in aid of them, to go on board such Ship or Ships, and to visit the same, and to examine the Masters or other Commanders, the Officers & Sailors, on board such Ship or Ships, and their Charter Parties, Invoices, Cocquets, and other Cred- entials, Testimonials, or Documents ; and if they find, that such Ship or Ships came from the East Indies, Madagascar, or any other Parts or Places beyond the Cape of Bona Esperanza within the Limits of Trade granted to the said united East India Company ; and that there are on board any such Goods, Commodities, or Negroes, as abovementioned, that they do give notice to the Master or other Person having then the Command of such Ship or Ships forthwith to depart out of the Limits of your Government, without giving them any Relief, Support, Aid or Assistance, altho' it should be pretended, that such Ship or Ships, were or the same really should be in Distress, Want, Disability, Danger of sinking, or for, or upon any other Reason or Pretence whatsoever, And that you Our Governor or Commander in Chief do by no means suffer any Goods, Merchandize, or Negroes from on board such Ship or Ships to be landed or brought on shore upon any Account or Excuse whatsoever ; And it is Our further Will and Pleasure, that, if any such Ship or Ships, being foreign, having on board any such Goods, Merchandize, or Negroes, do not upon notice given to the Master or other Person having the Command thereof, as soon as conveniently may be, depart out of the Limits of your Government, and from the Coasts thereof, without Landing selling or Bartering any of the said Goods, or Negroes, you our Governor or the Commander in Chief for the time being, shall cause the said Ship or Ships, and Goods and Negroes to be seized and proceeded against according to Law ; But if such Ship or Ships, having such Goods or Negroes on board, and entering into any Port or Place, or coming upon any of the Coasts or Shores of our said Province under your Government, do belong to Our Subjects, and do break Bulk, or sell, barter, exchange, or otherwise dispose of the said Goods, or Negroes, or any part thereof, contrary to Law ; you are to take care, that such Ship or Ships, with the Guns, Tackle, Apparel and Furniture thereof, and all Goods and Merchandize laden thereupon, and the Proceeds and Effects of the same be immediately seized ; and that the Laws in such case made and provided be kept in execution with the greatest Care, Diligence, and Application ; But if any Ship belonging to the Subjects of any foreign State or Potentate, paving on board any Negroes, or East India Commodities, shall be actually ilound to some Place or Port in the West Indies belonging to any foreign Prince or State, from some European Port, and such Ship shall happen to be driven in by necessity, and be in real Distress, the same may be supplied with what is absolutely necessary for her Relief ; but you shall not take, have, or receive, nor permit or suffer any Person to take, have or receive,
CONSTITUTIONAL DOCUMENTS 633
SESSIONAL PAPER No. 18
any Negroes, or other the said East India Commodities, in payment or satisfaction for such Rehef ; that if any Officer of our Customs, or other Officer employed by you our Governor or Commander in Chief in visiting, searching, or seizing such Ship or Ships, Goods, Merchandize, or Negroes, be corrupt, negHgent or remiss in the discharge of his Duty therein. We do hereby require you to suspend him from the execution of his said Office ; and that you do by the first Opportunity send an Account of such Officer's Behaviour to Us by one of Our Principal Secretaries of State, that care may be taken, that such Officer be removed from his Employment, and further punished according to his Demerit, — And Our further Will and Pleasure is, that you Our Governor or Commander in Chief, do constantly from time to time, and by the first Opportunity that shall offer, send us by one of Our Principal Secretaries of State, true, full, and exact Accounts of your Pro- ceedings, and of all other Transactions & Occurrences in, or about the Premisses, or any of them.
26. And Whereas, notwithstanding the many good Laws made from time to time, for the preventing of Frauds in the Plantation Trade, it is manifest, that very great Abuses have been and continue still to be practised to the prejudice of the same, which Abuses must needs arise either from the Insolvency of Persons, who are accepted for Security, or from the Remiss- ness or Connivance of such, as have been, or are Governors in the several Plantations, who ought to take care, that those persons, who give Bond, should be duly prosecuted in case of non-performance ; You are to take notice, that we take the Good of Our Plantations and the Improvement of the Trade thereof, by a strict and punctual Observance of the several Laws in force concerning the same, to be of so great Importance to the Benefit of this Kingdom, and to the Advancing the Duty of Our Customs here, that, if We shall hereafter be informed, that at any time there shall be any failure in the due Observance of those Laws, and of these present Instruc- tions, by any wilful fault or neglect on your part, We shall esteem such Neg- lect to be a Breach of the aforesaid Law ; And it is our fixed and determined Will & Pleasure, that you or the Commander in Chief respectively be for such Offence, not only immediately removed from your Employments, and be liable to the fine of one Thousand Pounds, as likewise suffer such other Fines, Forfeitures, Pains & Penalties, as are inflicted by the several Laws now in force relating thereunto ; but shall also receive the most rigorous Marks of Our highest Displeasure, and be prosecuted with the utmost Severity of the Law for your Offence against Us in a Matter of this consequence, that We now so particularly charge you with.
G:R.
634
CANADIAN ARCHIVES
6-7 EDWARD VII., A. 1907
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636 CANADIAN A RCHI VES
6-7 EDWARD VII., A. 1907
[L.S.] George R.
S; Additional Instructions to Our Trusty & welbeloved Guy
7 Carleton Esq'' Our Captain General & Governor in Chief in
Q ^ "^ & over Our Province of Quebec in America, & of all Our
"-^ §j ^ Territories dependent thereupon ; Or to the Commander in
XI
Chief of Our said Province for the time being. Given at ^ Our Court at S* James's the thirteenth day of March
1775. In the fifteenth year of Our Reign.
Whereas We did by Our general Instructions to you, bearing date at Our Palace of S* James's the day of
Declare Our Royal Will & Pleasure that sundry Salaries & Allowances therein mentioned, should be discharged & paid out of any Revenue arising to Us within Our said Province of Quebec, or out of such other Monies as should be granted or appropriated to the Use & Service of Our said Province ; the said Salaries & Allowances to commence on, & to be payable from & after the first day of May 1775. It is Our further Will & Pleasure, that over and above the several Salaries and Allowances in the said Instructions mentioned & set down — You do pay, or cause to be paid annually out of the said Revenue or Monies granted or appropriated as aforesaid, unto Our Trusty & welbeloved Edward Bishopp Esq"" or to his lawful Attorney, for & during Our Will & Pleasure, the further Sum of One Hundred Eighty two Pounds ten Shill^ the said annual Payment or Allowance to commence on the first day of May next ensuing the date hereof.
G:R.
[L.S.] George R.
So Additional Instructions to Our Trusty & Welbeloved Guy
^ Carleton Esq'' Our Captain General and Governor in Chief
Q ^ 2" in and over Our Province of Quebec in America and of all
"-^ §i ^ Our Territories, dependant thereupon, or to the Commander
§ in Chief of Our said Province for the time being. — Given
^ at Our Court at S* James's the fourteenth day of November
1775, In the sixteenth year of Our Reign. —
Whereas We did by Our General Instructions to you bearing date at Our Palace of S* James's, the 3'^ day of January 1775 Declare Our Royal Will and Pleasure that sundry Salaries and Allowances therein mentioned should be discharged & paid out of any Revenue arising to Us within Our said Province of Quebec, or out of such other Monies as should be granted or appropriated to the Use and Service of Our said Province the said Salaries and Allowances to Commence on and to be payable from and after the first Day of May last ; It is Our further Will &' pleasure that over and above the several Salaries and Allowances in the said Instructions mentioned and set down. You do pay or cause to be paid annually out of the said Revenue or Monies granted or appropriated as aforesaid unto Our Trusty and Wei-
CONSTITUTIONAL DOCUMENTS 637
SESSIONAL PAPER No. 18
beloved John Christopher Roberts Esquire, or to his lawful! Attorney the further Sum of Three hundred and fifty pounds ; the said annual payment or Allowance to Commence on the first day of May last. —
G. R.
• DRAUGHT OF AN ORDINANCE FOR ESTABLISHING COURTS OF JUSTICE IN THE PROVINCE OF QUEBEC.^
This Ordin- Whereas by an Act of Parliament passed at Westminster
ance is sup- ■' _ _ ...
posed to passin the 14*^ year of His Majesty's reign intituled "An Act for
lished alter making more effectual provision for the Government of the
^ly'Y?^^ °^ Province of Quebec in North America" the several Courts of
Justice then established in the said Province, together with all
Commissions to Judges and other Officers concerned in the
Administration of Justice, are revoked, annulled and made void.
And it being highly expedient and necessary that other Courts of Judicature with powers & authorities better adapted to the circumstances & situation of the Province, should be established in their place.
Be it enacted & ordained by His Excellency the Governor and Commander in chief for this Province by and with the advice & consent of the Council of the same. And it is accord- ingly enacted & ordained by the authority aforesaid that from and after the day of the date of the publication of this Ordinance, the following Courts of Criminal and Civil Jurisdiction to be held before the persons & at the days and places herein after set forth, with the powers & authority herein after more particu- larly described, be constituted & the same are hereby, & by the authority aforesaid constituted limited & appointed to take place in the several parts of the Province herein after mentioned for the due execution of the Laws & the Administration of Justice throughout the same as described and bounded by the said Act of Parliament.
And first that for the cognisance of all Pleas of the Crown & for the trial of all manner of Offences whatsoever as well capital as other inferior Crimes & misdemeanors done, com- mitted & perpetrated or to be done committed & perpetrated
1 CO. 42, Vol. 14, p. 28.
This is the full text of the proposed Ordinance draughted by Chief Justice Hey, and re- ferred to in the despatch of Dartmouth to Carleton, lO"" December, 1774, seep. 584 and foot- note 2 on the same page. As stated by Dartmouth, it expresses "His Majesty's gracious Intentions with respect to the plan of Judicature that is to be established." Although, owing to the rapid development of the troubles in America, the invasion of Canada, and the inter- ruption of the functions of the Legislative Council from September, 1775, to January, 1777, the draught Ordinance did not become law, yet it is important in view of much subsequent controversy as to the intentions of the British Government and the effect of the Quebec Act, with reference to the measure of completeness with which' the old French Civil Law and its machinery were to be restored in Canada. An outline of this proposed Ordinance is given in the Instructions to Governor Carleton, with reference to the establishment of Courts and the administration of the law, especialy in articles 12 to 15 inclusive. See pp. 599 — 600.
638 CANADIAN ARCHIVES
6-7 EDWARD VII, A. 1907
by any person or persons whatsoever within the Province, together with all and every accessory & accessories to the same, there be constituted & the same is hereby, and by the authority aforesaid erected, constituted and appointed one Supreme Court of Criminal jurisdiction in & over the whole Province of Quebec by the name style & title of the Court of King's Bench; to hear and determine according to the Laws of that part of Great Britain called England, & the Laws, Ordinances and Regulations of the said Province of Quebec hereafter in that behalf to be made ordained and published.
tWs^'rdin-*^"^ Which Court so constituted and appointed as aforesaid ance is passedshall be held before the Chief Justice of the Province for the arrival of the time being only,* to whom full power jurisdiction and authority k^houW be^ is hereby given and granted to hear & determine all matters of a necessary to Criminal nature whatsoever & the offenders therein with their
hold a Court . o i- ... • o
of Criminal accessories & accomplices to imprision, try, convict & punish l"apprehend in as large & ample a manner & according to the same rules & itwiiiaisobe fQj-jj^g Qf proceedings as to any Chief Justice of the Province re-enact the aforesaid has at any time been given & granted, or the Court vesting the of King's Bench at Westminster hath ; or of right ought to have, STeTjusdce exercise & enjoy.
in the hands
of Comm", And for the more speedy Administration of Justice & to
SO ffJT* ?tS
relates to prevent as much as possible the severity of long & tedious Criminal imprisonments, It is further ordained & enacted that the Chief Jurisdiction. Justice shall hold a Court of Oyer Terminer & Goal delivery three times in every year at the Town of Quebec, & twice in every year at the Town of Montreal that is to say one Court at or on some day in the month of one other Court at or on
some day in the month of & one other Court at or on
some day in the month of in & for the District of Quebec,
at the Town of Quebec & one Court at or on some day in the month of & one other Court at or on some day in the
month of in every year in for the District of Montreal
in the Town of Montreal, & as much oftner as well at Quebec as Montreal, as the Chief Justice of the Province in his discretion shall think necessary & the state of the Goal shall require allowing always 15 days between the Teste and Return of the precept for holding such Courts — ^At which days & times the said Court of King's Bench at Quebec & Montreal shall sit & continue to sit 'till every prisoner in the Goal shall be tried, convicted or acquitted & discharged & the Goal fully delivered, unless the court shall see cause to the contrary, in which case it shall be lawful for them to remand any Prisoner or Prisoners, & put off his her or their trial to the next Court.
CONSTITUTIONAL DOCUMENTS 639
SESSIONAL PAPER No. 18
Provided always, & it is further enacted & ordained that from and after the publication of this Ordinance it shall not be lawful to or for any judge or judges having Criminal Jurisdiction, to direct, order or sentence any felon or felons, convict to be burned in the hand; but such felon or felons convict, as by the Laws England would be liable to be burned in the hand, shall from hence forth be punished by fine & imprisonment, at the discretion of the Court before whom such felon or felons shall be convicted.
And provided also that in all Cases of felony where by any Act of Pariiament power is given to the judge or judges of any Court of Criminal Jurisdiction in England to transport any felon or felons to any of His Majesty's Plantations in America, it shall & may be lawful to and for the Court before whom any such felon or felons shall be convicted, «& they are hereby authorized & empowered to assign over & transfer such felon or felons convict for the term of 7 or 14 years or other less or greater term according to the nature of their offence, to the use of any person or persons, or his her or their assigns, who shall be willing to contract for the same to be by him or them so contracting, kept to hard labour & employed in some public work, or in the Fisheries or other useful Service, & the person or persons so contracting, shall by virtue of such Order of Assignment & transfer have a property in the service of such felon or felons for the term of 7 or 14 years or such other term as shall be made part of the Condition of the said transfer & Punishment.
And in case such felon or felons so transferred as aforesaid shall, during any part of the term or terms for which they are con- demned to serve refuse to obey the commands of such person or persons to whom they are consigned, their Agents, Overseers or Managers, or otherwise behave themselves disorderly. It shall & may be lawful to and for such person his Agents, Over- seers & Managers to confine such felon or felons & put them in irons & feed them upon bread & water only, and give them such corporal chastisement & correction as, without breaking any limb or endangering their lives, may with safety be inflicted.
And if any such felon or felons so assigned & conveyed shall run away from and leave the service of such person or persons to whom they are consigned, & be at large before the end of his, her or their term, he she or they shall be liable to be punished as any person or persons attained of felony without benefit of Clergy, & execution shall be awarded accordingly provided that it shall & may be lawful for His Majesty to pardon the said felon or felons & remitt any part of his and their Service; And that where any such felon or felons shall have served his
640 CANADIAN ARCHIVES
6-7 EDWARD VII, A. 1907
& their term for which they are sentenced, such service shall have the effect of a pardon for such Crime.
And every person or persons to whom any Court of Criminal Jurisdiction shall order any felon or felons to be transferred before any of them shall be delivered over to him or them, shall contract with such person as shall be appointed by the Court & give security that he will keep & employ the said felon or felons so transferred at hard labour as aforesaid for the term for which they shall be transferred, and that they nor any of them shall not be suffered to leave their service, or be at large by the wilful default of the person or persons contracting, or his, her, or their Assigns.
And it is further enacted and ordained that in all criminal cases whatsoever, no Indictment shall be quashed nor any Judgment arrested for want of form in any part of the Pro- ceedings.
And for the better & more orderly Regulation & Establish- ment of the Courts of Civil Jurisdiction herein after to be ap- pointed within the Province aforesaid It is Enacted and Or- dained &c^ That the Province of Quebec as limited & bounded by the said Act of the 14*^^ of His present Majesty be divided into two Districts or Territories to be called & known by the names of the District of Quebec & Montreal — the District of Quebec to contain & comprehend so much of the said Province as lies to the Eastward of the river S* Maurice, & to the East- ward of a Line drawn from the head of the said river to the Northermost bounds of the said Province; and also so much of the said Province as lies to the Eastward of the river and
are^two^^^'^^ of a Line drawn from the head of the said river to the Southmost Rivers on the bounds of of the said Province in case the said river shall be the River s» found to take its rise in the said Province; and all that part of ne^[y"oppo- *^^ Province to the Westward and Southwestward of the said site the Rivers & Lines shall be within the District of Montreal.
River S*
Maurice, the In and over which Districts of Quebec and Montreal so
Chene & the divided as aforesaid it shall and may be lawful to & for His p^^nt • t i Majesty, His Heirs & Successors from time to time to appoint necessary two Ministerial Officers by the name & title of Sheriffs to preside, Map to deter-that is to say — the Sheriff of Quebec in & over the District of to toke.^'''^ Quebec & the Sheriff of Montreal in & over the District of Montreal.
And it is further enacted and Ordained &c* that in & for the Districts of Quebec & Montreal so described & bounded as aforesaid, there shall be erected, constituted & appointed & the same are hereby & by the Authroity aforesaid erected, constituted & appointed two Courts of Civil Jurisdiction, by
CONSTITUTIONAL DOCUMENTS 641
SESSIONAL PAPER No. 18
the name style & title of the Courts of Common Pleas to be kept & held at the Towns of Quebec & Montreal respectively, with full power and authority to hear & determine according to the Laws, Customs & usages of Canada as observed & received in the said Province before the conquest of the same by His Majesty's Arms, & according to such Laws, Ordinances and regulations as shall, from time to time, be enacted by the Legis- lative Council of the same; which Courts of Common Pleas at Quebec & Montreal so constituted as aforesaid shall be taken and adjudged to have each their separate jurisdictions inde- pendent of & unconnected with each other that is to say — the Court of Common Pleas at Quebec in and over all Causes arising or to arise within the District of Quebec and the Courts of Common Pleas at Montreal in and over all Causes arising or to arise within the District of Montreal.
And it is further enacted and ordained 8i.c^ That in the Courts of Common Pleas so constituted as aforesaid Four of His Majesty's antient British Subjects by Commission under the public Seal of the Province, shall sit as Judges, that is to say two of the said British Subjects in the Court of Quebec, & two other of the said British Subjects in the Court of Montreal, which Judges of the said Courts for the time being are hereby empowered & authorized to take cognizance of Pleas in all Civil Causes whatsoever as well between His Majesty and His Sub- jects, as between party and party whether real, personal or mixed, & the same to hear, adjudge & finally determine, and also to award costs between party and party as fully and amply to all intents and purposes whatsoever as the Court of Common Pleas at Westminster, or any Court of Civil Jurisdiction within His Majesty's Kingdom of England is or are authorized & em- powered, or doth or may hear, adjudge determine and award.
And it is further Enacted and Ordained by the authority aforesaid that Too the Judges of the several Courts of Common Pleas as well in Quebec as Montreal so appointed as aforesaid, there be associated and joined in Commission two of His Majesty's Canadian Subjects by the name & names of Assistants or Assessors to the judges and Courts of Common Pleas as well in Quebec as Montreal respectively — that is to say — one such Canadian Subject as Assistant or Assessor to the judges & Court of the District of Quebec at Quebec, and one other such Canadian Subject as Assistant or Assessor to the judges & Court of the District of Montreal at Montreal.
Which said Assistants or Assessors shall be present at every Court and sit with the Judges of the said Courts respectively according to their District, & give their opinions and advice
642 CANADIAN ARCHIVES
6-7 EDWARD VII, A. 1907
in all Civil matters as well of Law as practice, as often as they shall be thereunto called by the judges of the said Court; but shall have no authority or power to attest or issue any process, nor have any voice nor give any Vote concerning any order, judgement or Decree, or otherwise interpose or meddle with any of the business of the said Court than by giving such Advice & Opinion as aforesaid when thereunto called upon & required so to do by the Judges of the said Court of Common Pleas respectively. And whereas it is very expedient for the due administration of Justice in this Province that there should be frequent Sessions of the Courts of Civil jurisdiction therein established to the end that His Majesty's Subjects in the said Province may prosecute their just claims in the said Courts with expedition & obtain final judgement and execution within a reasonable time — Be it further Enacted &c — and it is accordingly Enacted &c — that for the hearing and determining all Matters wherein the Cause of Action shall exceed the sum of Ten Pounds sterling money of Great Britain in and for & until the end & expiration of this present year 1775 there shall be held two Sessions of the Court of Common Plea as well at Quebec as Montreal that is to say one Sessions of the Court of Common Pleas for the District of Quebec at Quebec on the day of and one other such
Session as aforesaid on day of at Quebec as aforesaid,
one Sessions of the Court of Common Pleas for the District of Montreal at Montreal on day of and one other such
Sessions as aforesaid on day of at Montreal as aforesaid.
And from and after the End & Expiration of this present year, & in and for the year next ensuing — that is to say the year of Our Lord 1776, & in every year then after following, there shall be held 8 Sessions of the Courts of Common Pleas before the judges of the same that is to say 4 Sessions of the Courts of Common Pleas for the District of Quebec at Quebec, and 4 Sessions of the Courts of Common Pleas for the District of Montreal at Montreal by the Judges of the said Courts respectively on the days and at the times herein after following that is to say at Quebec for the district of Quebec
on the first day of
on the first day of
on the first day of
on the first day of And at Montreal for the District of Montreal
on the first day of
on the first day of
on the first day of
on the first day of
CONSTITUTIONAL DOCUMENTS 643
SESSIONAL PAPER No. 18
except when any of the days so as aforesaid appointed for the holding any of the said Courts shall happen to be a Sunday, in which case the Sessions shall commence on the 2^ or Z^ of such month as the judges of the said Courts shall, in their discretion, think proper to appoint.
At which days and times so appointed as aforesaid, the said Courts of Common Pleas, as well at Quebec as Montreal, shall sit and continue to sit day after day on every day in the week, except Sundays, until the business of the said Court shall be finished unless the Judges of the said Courts shall be finished unless the Judges of the said Courts shall think fit at any time to adjourn the said Court unto some further day in the same Session or unto the first day of the next Session, which adjourn- ments they are hereby empowered and authorized to make according to their own Discretion.
Provided always, and it is hereby further ordained & de- clared by the Authority aforesaid, That for the hearing & determining all Matters wherein the Cause of Action shall not exceed the sum of Ten Pounds, & where no title to Land is in question, the said Courts of Common Pleas as well at Quebec as Montreal, shall be open at all times, and they are hereby Commanded to be kept open at all times throughout the year except on Sundays, and for 3 weeks at seed time one Month at harvest, & a fortnight at Xmas and Easter; and except during such times as shall be appointed by the Judges for making their respective Circuits throughout the Province — ^And every Friday in every week throughout the year, except in such Vacations as aforesaid shall be a Court day for hearing & deter- mining all Matters wherein the Cause of Action shall not exceed the sum of Ten Pounds, and where no Title to Land is in Question.
Provided also, and it is further Enacted and Ordained &c. by the Authority aforesaid, that from & after the Publication of this Ordinance, when any person or persons against whom any judgement or Judgements shall be obtained in either of the said Courts of Common Pleas, shall not have any Lands, Goods, or Effects wherewith to satisfy the same within the jurisdiction of that Court wherein such judgement or Judgements shall be obtained, but such person or persons shall have Lands, Goods & Effects within the jurisdiction of the other Court of Common Pleas that then and in that Case it shall and may be lawful to & for the judge or judges of the Court of the District in which such Judgement or judgements shall be obtained to award an Execu- tion, or Executions to the Sheriff of the District in which such Lands Goods & Effects shall be found who shall before he pro- ceeds to do anything therein carry such Writ or Writs of Execu-
644 CANADIAN ARCHIVES
6-7 EDWARD VII, A. 1907
tion to one of the Judges of the Court of the District in which such Lands Goods, or Effects shall be found, who is hereby authorized and required to indorse the same, which Writ or Writs of Execution being so endorsed as aforesaid, the Sheriff of the District in which such Lands Goods or Effects shall be found shall proceed to levy the debt & costs & make return thereof under his hand & seal to the Judge or Judges of the Court from whence such Writ or Writs of Execution was or were originally awarded.
And such Writ or Writs of Execution with the Return thereof under the hand & Seal of the Sheriff subscribing the same, shall be by him transmitted so soon after the making & subscribing thereof as conveniently may be, to the Sheriff of the District from when such Writ was originally awarded, who is hereby authorized & Commanded to deliver the same into the Court of Common Pleas, from whence such Writ was originally awarded,, on the first Court Day next after the coming of the said Writ and Return into his hands, and the Judge or Judges of the said Court from whence such Writ of Execution was originally awarded, shall receive & record the same & the same shall be as valid and effectual to all intents & purposes as if the Sheriff making & subscribing the same, had himself been present & delivered it into Court with his own hand.
And in Case any person or persons against whom any such judgement or judgements as aforesaid, shall be obtained, not having any Lands, Goods, or Effects within the Province where- with to satisfy the same shall usually reside without the Juris- diction of the Court in which such Judgment or Judgments shall be obtain'd or being at the time of obtain^ such Judgment or Judgments resident within the same shall alter his or their place of Residence and withdraw his or their Person or Persons from the Jurisdiction of the Court in which such Judgment or Judg- ments shall be obtained, it shall and may be lawful! to and for the Judge or Judges if the Court in which such Judgment or Judgments shall be obtained in all Cases, where such Writ may legally issue to award process against the Body of such Persons or Persons to the Sheriff of the District in which such Person or Persons shall reside or be found, which process being so indorsed as aforesaid the sheriff of the District in which such Person or Persons shall reside or be found shall proceed to Execute the same, and to arrest the Body and Bodies of such Person & Persons, & Him, Her & them to carry to the Common Goal of the District in which such Person or Persons shall be arrested, there to remain till the Debt and Costs are paid, or the parties be otherwise delivered by due Course of Law. Provided also the Sheriff
CONSITUTIONANL DOCUMENTS 645
SESSIONAL PAPER No. 18
executing the said Writ and Writs and making returns thereof as aforesaid shall be answerable as well for the truth of the said Returns as for any Misbehavior Neglect and Comission in the manner of Executing the said Writs and making returns thereof before the Judge or Judges of the Court from whence such Writs originally issued and not before the Judge or Judges of the Court of the District to which he belongs.
And to prevent as much as may be all unnecessary delay and other evil consequences arising from vitious and informall pleadings, and that the Judges of the Courts of Common Pleas may be the better enabled to give Judgment upon the true Merits of every Case, it shall and may be lawfull for the Parties as well Plantiffs as Defendants, their Counsell Solicitors and Agents in all Cases where the Cause of Action shall exceed the sum of Ten pounds Sterling Money of Great Britain and where any title to Lands shall be in question to set forth under the hand of their Counsel Solicitor or Agent subscribing the same either in the French or English Language the whole matter of Complaint and defence in as full and ample a manner and in such form as they shall think proper and upon the coming in of the final Answer of the defendant or when the Pleadings between the Parties shall be otherwise closed, the Court shall appoint a Day in the hearing of the Parties their Council, Solicitors or Agent to examine and consider the same, at which Day they shall proceed to settle the Issue or Issues contained in the several Allegations and Pleadings of the parties.
And if upon such Consideration and review of the pleadings it shall appear to the Court, and the Parties shall agree that no fact material to the point or points in Issue is controverted between them but that the Right of either party depends upon a mere Question or Questions of Law the Court shall appoint a day for hearing the Arguments of Council on both sides touching the same, and shall determine therein according to the Laws and Customs of the Province and according to their best knowledge and understanding of the same.
And if upon such review & Consideration as aforesaid it shall appear to the Court that some Fact or Facts material to the point or Points in Issue is and are intended to be contested between the Parties it shall and may be Lawfull for the Court by consent of all Parties and not otherwise to try the same before themselves by Viva Voce Evidence of Witnesses at their Bar written Instruments or other modes of Testimony commonly used in Courts of Justice and instead thereof and in case any of the Parties shall so require to direct one or more Issue or Issues for the Proof of such Facts to be Tried by a Jury return-
646 CANADIAN ARCHIVES
6-7EDWARD VII, A. 1907
able by the Sheriff at such day and time as the Court shall appoint for the Trial of the same.
And if upon review of the Pleadings aforesaid it shall appear to the Court that the Right of either Party depends upon a complicated Question both of Law & fact it shall and may be lawfull for the Court in that Case upon the consent of all the Parties as aforesaid to try such Issue of Fact themselves upon such Evidence as aforesaid or otherwise at the instance and request of either of the Parties to direct one or more Issue or Issues for the tryal of such Fact or Facts by Jury reserving to themselves the sole Right of determining (in which the Jury shall not interpose) the Question or Questions of Law Dependant upon such Facts and to give Judgment and pronounce thereon according to the Laws and Customs of the Province and accord- ing to their best knowledge and understanding of the same.
And it is further enacted and ordained that in all Actions hereafter to be commenced in either of the Courts of Common Pleas of the Nature of Actions of Assault and Battery, Slander false imprisonment and other Actions wherein a Recompence in Damages is sought for Personal wrongs, where no Justification in Law is pleaded on the part of the Defendant but the Issue is a meer Question of Fact upon Guilty or not Guilty it shall and may be Lawfull to and for the Judges of such Court to direct the same to be tried by a Jury of twelve Men who shall give their Verdict and assess the Damages between the Parties in the same manner as Juries do or have right to do who are at any time returned to try such Issues in the Court of Common Pleas at Westminster or any other Court of Civil Jurisdiction within the Kingdom of England.
And where in such Action or Actions as aforesaid any Justification in Law is set up by the Defendant or any Question of Law goes to the whole merits of the Case shall arise out of the pleadings the Court shall give Judgment thereon before any Issue shall be directed for the Trial of any Fact, and if such Judgment shall be with the Plaintiff it shall and may be Lawfull for the Court to direct and award to the Sheriff of the District in which such Judgment shall have been given a writ to Summon a Jury of twelve Men to appear before the Court on a certain Day therein appointed to enquire concerning the Damages sustained and suffered by the Plantiff in the said Action and Assess the sum necessary to be given to him as a Compensation for the same.
And whereas it has been found by Experience that the unan- imity heretofore required from Jurors in giving their Verdict has been attended with many inconveniencies, it is further
CONSTITUTIONAL DOCUMENTS til
SESSIONAL PAPER No. 18
I think it will Enacted and ordained that in all Issues directed to be tried by
be necessary tm • i n
to have a a Jury in the Court of Common Pleas it shall not be necessary
Ordnan^ for for the whole twelve Jurors to agree in their Verdict but the
ticfn of Juries ^^^*^^^^ ^^ Eight out of the twelve and not fewer agreeing and
—if so this consenting thereto shall be as good valid and effectual for ascer-
^lollop hsd
better be taining any Fact or Facts directed to be tried in such Issue or the'prele^nt. Issues or for assessing such Damages as if the whole twelve indeed I am jurors had agreed and been consenting to the same.
much inchned-' ° , ^ T /^ i • r^i • c e
to doubt the And whereas the Governor and Commander m Chief of
Proprkt^y of the Province for the time being has been used to hear and deter- it at any mine causes in Equity and to pronounce order and decree therein between the Parties in a Court called and known by the Name stile and title of the Court of Chancery held before himself as keeper of the public Seal of the Province the proceedings of which Court with the Delay and Expence incident to a Suit commenced therein have been very Burthensome to the parties and are ill adapted to the state and Condition of the Province — It is further Enacted and ordained by the Authority aforesaid that from and after the Publication of this Ordinance No Gover- nor, Lieu* Governor or other keeper of the Public Seal of the Province shall hold or keep or sit as Judge in any such Court of Equity or Exercise any Powers & Authorities touching the same as belonging to or derived from the Custody of the Public Seal, but the same are hereby and by the Authority aforesaid revoked, annulled, and made void to all Intents & Purposes whatsoever.
And in place thereof and in order to retain & preserve so much of the Jurisdiction of a Court of Equity as is adequate to the purpose of attaining specific Justice & necessary thereto, it is farther enacted & ordained that in Matters of Account, Trust, Fraud, Concealment, and other Cases where any Plaintiff or Plaintiffs, or any Defendant or Defendants shall seek a Dis- covery of any Deed, Trust or other Matter or thing within the Knowledge of any Defendant or Defendants, Plaintiff or Plaintiffs which in all Equity and good Conscience ought to be discovered & made known to the Parties seeking such Discovery it shall and may be lawful to and for the Judges of the Court of Common Pleas as well in Quebec as Montreal to permit such Plaintiff or Plaintiffs & such Defendant or Defendants upon his, her or their Prayer for that purpose to exhibit one or more Interrogatory or Interrogatories for the purpose of procuring such Discovery and to compel the Parties from whom such Discovery is sought to answer the same upon pain of being proceeded against in the same manner as persons in Contempt for not answering or making such Discovery are usually proceeded against in any of the
648 CANADIAN ARCHIVES
6-7 EDWARD VII, A. 1907
Courts of Equity in England until full Answer is put in or the Court is otherwise satisfied and the Party cleared of the Con- tempt.
And in like manner in all Cases of Covenant, where from the time of entering into such Covenant, nothing has intervened, or happened, to make it hard or unreasonable for the Party covenanting to perform the same, in the express Terms of the Covenant, it shall, and may be lawful, to and for the Judges of the said Courts of Common Pleas, upon Prayer of the Party for that purpose, to award and decree a specific performance of such Covenant, or Covenants, and in case of Disobedience, or Refusal, to imprison the Party so refusing, 'till he, she or they shall comply with the same & pay due Obedience to such Award & Decree.
And it is further enacted & ordained by the Authority aforesaid, that as well in the Courts of Common Pleas aforesaid, as in all other Courts of Civil Jurisdiction in this Province, the Process for compelling Appearances & all other Matters previous to the Judgment except in Cases of Contempt for not answering to Interrogatories, & except where the Judges of the Court upon special Affidavit shall mark any Writ for Bail which in their Discretion they are hereby authorized to do, shall by Summons, Attachment of Goods & Distress only, & after Judgment, by Writ of Execution against the Goods & Effects, and for want of Goods & Effects, against the Land, and for the want of Land against the Person of the Defendant or Defendants, against whom any Judgment or Judgments shall be obtained in any such Court or Courts.
But whereas great & manifold Inconveniences & Losses have arisen to the Proprietors of real Estates in this Province by having their Houses & Lands taken in execution & exposed to sale for the payment of small debts, & also from the hasty & informal Method of setting the same to sale, even in Cases where the Extent of the Judgement will admit of no other Satisfaction; It is further enacted & ordained by the Authority aforesaid that from & after the publication of this Ordinance no process what- soever shall be awarded out of any of the Courts of Civil Juris- diction in this Province, for the Sale of any House or Houses, Land or Lands ,Tenement or Tenements upon any Judgement or Judgements where the original Cause of Action shall not exceed the sum of ten pounds Sterling Money of Great Britain, & that from & after the publication aforesaid, no Houses, Lands or Tenements nor any House, Land or Tenement shall be extended or sold by the sheriff or any person whatsoever, unless the per-
CONSTITUTIONAL DOCUMENTS 649
SESSIONAL PAPER No. 18
sonal Property of the Defendant or Defendants in the Action shall be found insufficient.
And it is further ordained and declared by the Authority aforesaid, that upon the issuing of any Writ or Writs of Execu- tion for the sale of any Houses, Lands or Tenements, or so soon after as conveniently may be, the Sheriflf of the District in which such Houses, Lands or Tenements shall lie or be situated shal cause the same to be advertized in the Quebec Gazette, both in English and French, and therein set forth as near as may be the Quantity, Quality & Condition of such Lands & Houses, together with the Terms & Day of sale, which Day of Sale shall not be 'till six Months after such Publication as aforesaid; and at the same time or so soon after as conveniently may be, he shall also cause a true Copy of the said Advertisement in the English and French Language to be sent to the Head Bailiff of the Parish where such Houses & Lands shall lie & be, who is hereby ordered & required to fix the same upon the Door of such Parish Church, & replace the same so often as it shall be removed, defaced, or rendered illegible by time or accident; and also to publish & declare the Contents thereof every Sunday at the Door of the said Church immediately after Divine service, that the same may be fully known & understood by the Inhab- tants thereof for which the said Bailiff shall receive out of the Produce arising from the Sale of the said Estate the Sum of one Spanish Dollar & no more to be paid by the sheriff & allowed him in his Accounts.
Provided always, and it is hereby and by the Authority aforesaid further ordained and declared, that from and after the Publication of this Ordinance, all Houses Lands & Tenements against which any Writ or Writs of Execution shall be awarded for the sale of the same, shall be taken to be and they are hereby & by the Authority aforesaid declared, to be obliged & bound in Law to pay & satisfy all & every judgment & Judgements which shall or may be obtained against the Owners & Proprietors thereof, from the Day on which such Judgement or Judgements shall be pronounced & given, and that no Mortgage Sale or Assignment, or any Deed of Conveyance or any Disposition without Deed, whatsoever, howsoever, or to whomsoever made on or after the Day on which such Judgement or Judgements shall be pronounced & given as aforesaid shall defeat, avoid, suspend, or delay the Force and Operation of such Judgment, but all & every such Morgage, Sale, Assignment, Deed & Disposition, shall be taken to be, and all & every of them is, & are hereby declared to be fraudulent, as against the said Judgment, Creditor, or Creditors, & to have no Validity, Power, ElTect, or operation.
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whatsoever to the prejudice of such Judgment Creditor or Creditors,
And it is further ordained & declared by the Authority aforesaid, that all Judges issuing any Writ of Execution, as well where the Cause of Action shall exceed the sum of ten Pounds sterling as aforesaid, or where it shall not exceed the same, shall & may, and they are hereby authorized & required, to mark upon such Writ of Execution, the Day on which Judgement was pronounced in the Cause, and if two or more Writs of Execution shall be issued upon Judgments pronounced, the same day, against the same Defendant, or Defendants, & so marked upon the Writ, such Executions shall have the same Privileges, & be satisfied in equal proportions; & the sheriff or other persons to whom such Writs of Execution shall be awarded, is hereby authorized & commanded, after the sale of the whole of such Defendant or Defendants, real & personal Estate, where the said Writs of Execution shall be awarded against both, in case the same should not be sufficient to satisfy the whole of the said Judgements, to pay over, & divide the Produce of such sale, or sales, after deducting his own Costs & Charges, amongst the several Plaintiffs in proportion to the Amount of their respective Judgments, perhaps^had^ *Provided always that nothing contained in this Ordinance
better be shall extend or be construed to extend, to prevent or hinder the the clause Judges of any of the Courts of Judicature, established or to be the^Courts^ established by virtue of the same, from making any other Rules ^■^^^- & Regulations, not contrary to the Rules & Regulations herein
before described, for the more orderly practice & Proceedings in the said Courts, but the said Judges of the said several Courts shall be, and they are hereby authorized & impowered to make such other Rules & Regulations, except in the Cases herein before provided for, in as full & ample manner, as all, or any of the Judges of the several Courts of Judicature in England may or of Right ought to make.
And provided also that, in all Cases where the Cause of Action shall exceed the sum of ten pounds sterling Money of Great Britain, or where any Title to Land is in question, all & every Person & Persons, who shall think him, her, or themselves, aggrieved by Virtue of any Decree, Judgment, sentence, or Order, of any of the Courts of Justice established; or to be established, in this Province, may appeal therefrom; & it shall be lawful for him, or them, to appeal therefrom to the Court of Appeals, to be held before the Gov' & Council of the Province as hereinafter appointed; such Person or Persons so appealing, having first given good security to prosecute such Appeal, &
CONSTITUTIONAL DOCUMENTS 651
SESSIONAL PAPER No. 18
also to pay & satisfy the Debt & Costs, as well of the original Judgement, as of the Appeal, in case the original Judgement shall be affirmed in such Court of Appeal.
Provided always that such Appeal be prosecuted out of the Court below, & entered with the Clerk of the Council or other Officer appointed to receive Appeals from the inferior Courts within Months after Judgment shall have been given in
such inferior Courts.
And whereas the providing an easy plain & summary Method of proceeding for the Recovery of small Debts, very much contributes to promote Industry & to support & encourage useful Credit, and to the intent that the manner of Proceeding in such Actions where the Matter in dispute does not exceed the sum of ten Pounds sterling Money of Great Britain may be clearly comprehended so as to enable the Party to prosecute his own Means of Redress by himself or Agent with Dispatch cer- tainty & Moderation in point of Expence; It is enacted & de- clared &c^ That from & after the Publication of this Ordinance in all Matters where the Cause of Action shall not exceed the Sum of ten Pounds as aforesaid. No Process whatsoever shall issue against any Defendant or Defendants untill the Plaintiff or Plaintiffs or his, her or their Agent or Agents shall have produced & left with, or being unable to write or read, shall have first procured from the Clerk of the Court of Common Pleas in which such Action is intended to be brought who is hereby ordered & required to make out the same a Plaint or Declaration either in the English or French Language according to the fol- lowing form.
Quebec
Montreal Day of 177
A. B. Plaintiff
CD. Defendant
The PlaintifT demands of the Defendant the sum of due to the Plaintiff from the Defendant for which said sum
though often demanded, still remains due. Therefore the Plaintiff demands Judgement; which Declaration being so produced to, and left with or so as aforesaid made out by the Clerk of the Court in which such Action is intended to be brought, shall be filed by the said Clerk with other Records of the Court, and the said Clerk shall immediately make out an attested Copy thereof & upon such Copy indorse a summons to which he shall procure the Name of one of the Judges of the said Court to be set commanding the Defendant either to pay the Debt & Costs to the Plaintiff, or else to appear on some subsequent Court day, according to the Discretion of the Judge who signs the
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same, Regard being had to the distance of the Defendant's place of Residence, & the means of Communication therewith, which summons shall be in the following form.
To C. D. the Defendant in this Action.
You are hereby commanded & required to pay to the Plaintiff the within named Sum of together with
Costs or else to be and appear, either in person, or by your Agent, before me at the Court house of the Town of Montreal together with your Witnesses, if any you have, on day of
which day the matter of Complaint against you, as Contained in the within Declaration, will be heard & finally determined, otherwise Judgment will be given against you by default in this Action.
E. F. Judge of the Court of Common Pleas.
And this