Documents of the Canadian Constitution, 1759-1915

[merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][ocr errors]

V. Instructions to Governor Murray, Dec. 7, 1763

VI. Ordinance Establishing Civil Courts, 1764

This Ordinance was issued by Governor Murray to

regulate and establish the administration of justice in

the Province.

VII. Murray to the Lords of Trade, October 29, 1764 . . 40

Murray complains of the British in Canada and praises

the Canadians. He looks for further privileges for

the latter. He hopes the Ordinance (No. VI) will be

approved, as he considers it necessary to prevent emi-

gration.

VIII. Petition of the Quebec Traders to the King, 1764 . . 41
The Petitioners outline their settlement and progress,
even under military rule which they endured, hoping
for civil administration. Murray's rule is objected to
as vexatious and partial; complaints are made that he
is negligent in his religious duties. His recall is asked
for, and a new and more sympathetic Governor re-
quested. A House of Assembly is also petitioned for
in which the British alone should sit.

IX. Ordinance of November 6, 1764

This Ordinance aimed at quieting the uneasiness of

the Canadians in connexion with security in their

property.

X. Report of the Attorney General and the Solicitor General

of England regarding the Civil Government of Quebec,

1766 .

The Report claims that much disorder has been caused

by the failure to provide for the use of the French

language and for the employment of Canadian judges

and advocates; by the fact that the Canadians feared

that a strict interpretation of the Royal Proclamation

(No. IV) was imminent. The provision of Canadian

jurors had, however, removed many misunderstand-

ings. Further changes, however, in the judicature are

advised. Recommendations are given: to follow in civil

cases French custom, and in criminal cases English

criminal law.

XI. Ordinance of 1766

Page

This amends and amplifies No. VI.

XII. Masères' Considerations on the Expediency of an Act
of Parliament for the Province of Quebec, 1766
Parliament and not the King must settle Canadian
questions. The whole legal system needs careful con-
sideration. A House of Assembly is not now expedient
-reasons are given; but if it is to be established,
Parliament and not the King must be responsible.

XIII. Commission to Chief Justice William Hey, 1766

XIV. Remonstrance of the Members of Council to Carleton

October 13, 1766 .

Five members of the Council blame the Governor for

his methods in consulting only a part of the Council

and in connexion with appointments to the Council.

Complains of the legal system erected by No. VI. Its
continuance will produce discontent.

XVII. Hillsborough to Carleton, March 6, 1768

Hillsborough gives his interpretation of The Royal

Proclamation of 1763 (No. IV). With regard to

property, there was no intention of overturning the

laws and customs of Canada. Remedial instructions

are promised.

XVIII. Masères' Report to Hillsborough, 1769

Reports that Governor Carleton recommends the con-

tinuance of English criminal law and the revival of

the whole body of French civil law in use before the

conquest.

XIX. Masères' Criticism of No. XVIII, 1769

Disapproves of the revival of the whole body of

French civil law. Elaborate reasons are given. He

recommends a code of laws for Quebec in which

French and English civil and criminal laws should be

judiciously included after careful selection. If inex-

pedient, let English criminal law continue, and let the

French law relating to tenures, etc., be revived.

XX. Carleton to Hillsborough, March 28, 1770

Encloses No. XXI. and justifies it.

XXI. Ordinance for Improving the Administration of Justice,

1770

An elaborate ordinance by means of which Carleton

vainly hoped that some of the corruptions of the legal

system would be improved.

XXII. Case of the British Merchants Trading to Quebec, 1774. 72

A detailed elaboration of the principles underlying

No. VIII. Petitioners rely on documents to prove

their case. They fear the revocation of the Royal

Proclamation (No. IV.), etc. They have built up

Page

their trade and business on the presumption of English
law being in use and maintained. They dread the
revival of the French code. They defend the morality
of introducing and maintaining the English system,
especially in relation to trade, contracts, trial by jury,
habeas corpus. Prosperity has followed the methods
already employed. No objections to French law in
relation to landed property. House of Assembly re-
quested. Complaints made against the erection of a
Legislative Council as outlined in the proposed Quebec
Act. Sufficient Protestant landholders now in the
Province to form a House of Assembly. Objections
to the admission of Roman Catholics to the Council,
which, if it must be constituted, must be made inde-
pendent of the Governor, its continuance limited to a
certain time, and its numbers fixed. Payment for
Councillors suggested.

XXIII. Lord Mansfield's Judgment in Campbell v. Hall, 1774 79

Discusses inter alia (a) the general position of a con-

quered country in relation to law, (b) the Proclama-

tion of 1763 (No. IV.).

XXIV. Debates in the British Parliament on the Quebec Act,

1774

XXV. The Quebec Act, (14 George III, c. 83.), 1774

XXVI. The Quebec Revenue Act, (14 George III, c. 88), 1774

Provides for the raising of a provincial revenue.

132

136

XXVII. Address from the General Congress to the Inhabitants

of Quebec, October 26, 1774

139

The revolting Southern Colonies invite the Canadians
to make common cause with them.

THIRD PERIOD

1774-1791

Introductory Note to the Period

147

XXVIII. The Quebec Revenue Act (15 George III. c. 40), 1775 149

This Act "amends and explains" No. XXVI.

XXIX. Instructions to Governor Carleton, 1775

XXX. Ordinance for Establishing Civil Courts, February 25,

1777 .

This document, with the two following, represents

Carleton's scheme for legal administration.

XXXI. Ordinance to Regulate Procedure in Civil Courts, Feb-

XXXII. Ordinance for Establishing Criminal Courts, March 4,

XXXIII. Colonial Tax Repeal Act (18 George III. c. 12), 1778

XXXIV. Haldimand to Germain, October 25, 1780

Haldimand considers that the sentiments of the major-

ity in the Province should prevail, and that the Quebec

Act saved the Province from becoming one of the

United States.

XXXVI. Haldimand to Lord North, November 6, 1783

Hears rumours that the "ancient subjects" intend to

plead the arrival of the Loyalists in the Province as a

strong support to their claim for a House of Assem-

bly. Habeas Corpus to be put on a secure and clear-

cut foundation.

XXXVII. Postmaster-General Finlay to Sir Evan Nepean, October

22, 1784

A House of Assembly not understood by the gener-

ality of the Canadians. Education very backward. A

foundation must be laid by education. It is therefore

necessary to establish free parochial schools, and to

disseminate information about the functions of repre-

sentative institutions before constituting them in the

Province. Habeas Corpus and juries discussed.

XXXVIII. Petition for a House of Assembly, 1784

From the British and some of the Canadians. The old

claims are set forth, but, in addition, a detailed plan of

a new written constitution is outlined.

XXXIX. Plan for a House of Assembly, 1784

This plan is supplementary to No. XXXVIII.

XL. Objections to a House of Assembly, &c., 1784

A reply, section by section, on the part of the major-

ity of Canadians, to No. XXXVIII.

XLI. Address from Roman Catholic Subjects to the King, 1784. 178

Further reply to No. XXXVIII. Inter alia, priests

are needed and education is suffering. Permission is

asked to bring priests from Europe. An Assembly

feared as a method of taxation. Delay is asked at any

rate, until the people have been canvassed.

XLII. Instructions to Lord Dorchester, 1786

XLIII. Finlay to Nepean, February 13, 1787

Difficulties in the legal world still continue. A new

nomenclature growing up-"new Canadians and old

Canadians”—very pleasing to the noblesse. Is it wise

to perpetuate French ideas, etc.? Is not the experi-

ence of the lukewarmness of the habitans in the Revo-

lutionary War a warning?

180

185

XLIV. Ordinance re Proceedings in Civil Courts, April 30, 1787. 186

XLV. Ordinance re Criminal Courts, April 30, 1787

This is an amendment to No. XXXII.

XLVI. Debate on Adam Lymburner's Evidence before the

188

House of Commons, 1788

XLVII. Sydney to Dorchester, September 3, 1788

Parliament cannot postpone the discussion and settle-

ment of Canadian questions any longer. Will Dor-

chester therefore send as full an account of them as

possible, and such as may be laid before Parliament?

Particular attention in this account must be laid on an

Assembly, taxation, trial by jury. It is proposed to

divide the Province. Will an Assembly be imme-

diately necessary in the new district settled by the

Loyalists?

189

191

Reply to No. XLVII. Statistics of population. The

commercial element is chiefly responsible for the de-

mand for an Assembly. The habitans are incapable

of forming an opinion; clergymen are neutral; the

noblesse are opposed. Taxation is feared above all;

but the dangers of an Assembly among an uneducated

and simple people are not overlooked. Dorchester is

opposed to a division of the Province at present, gives

his reasons; but should Parliament decide on it, he

encloses a description of a proposed boundary line.

XLIX. Finlay to Nepean, February 9, 1789

Discusses further an Assembly. Growing demand for

"England holds her colonies for the sole purpose of

extending her commerce." He believes any form of
government will satisfy the Canadians, provided taxa-
tion and religion are left alone.

L. Grenville to Dorchester, October 20, 1789

A private dispatch supplementing No. LI. Concessions

are proposed. He thinks it wise to give them when

they will be considered favours, rather than to wait

till they may be extorted. Dorchester's opinion is

asked on the entire proposals, especially in connexion

with Crown Reserves.

LI. Grenville to Dorchester, October 20, 1789

Encloses first draft of the Constitutional Act of 1791.

Plan is "to assimilate the constitution to that of Great
Britain," and to divide the Province. Boundaries are
a delicate question. United States must not be irri-
tated. The constitution and composition of the new
Legislative and Executive Councils and House of
Assembly discussed. Hereditary Legislative Council
proposed through a Provincial Baronetage.

LII. Dorchester to Grenville, February 8, 1790 .

Acknowledges No. LI. Returns draft of Act with his

suggestions inserted. Objects to an hereditary Legis-

lative Council. Discusses, as requested, the structure

of the proposed new constitution. Encloses an im-

portant letter from Chief Justice Smith, together with

the Chief Justice's proposed additions to the new

Bill (Nos. LIII. & LIV.).