The OPINION of the Attorney General of the Province of QUEBEC concerning the Report made by his Excellency Brigadier-General CARLETON, the Governour in Chief of the faid Province, to his Majesty. in Council,

CONCERNING

The State of the Laws and the Administration of Justice in the faid Province ;

W I TH

The Reafons of his Diffent from fome of the Matters contained in the faid Report.

YOUR Majefty's attorney general of this province approves that part of the foregoing report which gives an account of the conftitution of the government of this province during it's fubjection to the French king, and believes the faid account to be true in moft particulars; but he cannot affent to that part of the faid report the propofal of which fuggefts to your Majefty the expediency of reviving the whole body of whole of the French laws in civil matters, for the following

Objections to

reviving the

the French laws

relating to civil reasons.

matters.

Inconfiftency of

fuch a measure

jesty's former

Quebec.

In the first place, he thinks it will be a deviation from that plan with his Ma- of conduct which your Majefty has hitherto thought fit to purfue. plan of conduct with refpect to this province ever fince the conqueft of it by your with refpect to Majefty's arms in 1760, which he conceives to have been, to endeavour to introduce the English laws and the English manner of government into it, and thereby to affimilate and associate this province to your Majesty's other colonies in North America, and not to keep it diftinct and separate from them in religion, laws, and manners, to all future generations. He conceives that if this latter fyftem had been that which your Majefty had adopted, your Majefty would have given orders to your general, Sir Jeffery Amherst, to whom this province was furrendered, to keep up, from the first

moment

moment of the conqueft, all the courts of justice that were at that time in being in the colony, and even the feveral officers that compofed them, upon the fame footing on which they then fubfifted. But as your Majefty's faid general did immediately fupprefs all the former jurifdictions, and erect military councils in their stead, and in the articles of capitulation refused to promife the inhabitants of this province the continuance of the custom of Paris, and the other ancient laws and ufages by which they had been governed, though requested in that behalf by the French general ;-and as your Majesty did afterwards, in the fourth article of the definitive treaty of peace in 1763, engage to indulge your new Canadian fubjects even in the delicate and important article of the free exercise of their religion, only fo far as the laws of England will permit ;-and as your Majefty, by your royal proclamation of the 7th of November 1763, did encourage your British and other ancient subjects to go and fettle in this and the other new-erected governments, and did promise them, as an excitement thereunto, the immediate enjoyment of the benefit of the laws of England;—and as your Majesty did afterwards, by your commiffion of vice admiral of this province granted to General Murray, expressly introduce all the laws of the English courts of admiralty into this province; and by your commiffion to the fame gentleman to be captain general and governour in chief of this province, did direct him to fummon an affembly of the freeholders and planters in this province, and in conjunction with them to make laws and ordinances not repugnant to the laws of England, by which it seems to be pre-supposed that the laws of England were already introduced there; and did in other parts of the faid commiffion allude to divers of the laws of England as being already in force bere, as particularly the laws relating to the oaths of abjuration and Supremacy, and the declaration against tranfubftantiation-From thefe feveral exertions of your Majesty's royal authority in favour of the laws of England, your Majefty's attorney general of this province humbly collects it to have been your Majefty's gracious intention to affimilate this province in religion, laws, and government to the other dominions belonging to your Majefty's crown in North America; he therefore conceives that the immediate revival of all the French laws relating to civil fuits in this province, in the manner fuggefted in the foregoing report, will have at least the appearance of a deviation from the plan of conduct which your Majefty has hitherto adopted, and of a step towards a preference of

G 2

the

the contrary system of keeping this province diftinct from, and unconnected with, all your Majesty's other colonies in North America: and this appearance he humbly conceives to be itself a confiderable inconvenience, and very fit to be avoided, unless very strong reasons of justice or policy made fuch a measure neceffary, which he does not conceive to be the cafe; for, on the contrary, he apprehends that the said total revival of the custom of Paris, and all the other fuch a measure. French laws relating to civil fuits, will be attended with the following additional inconveniencies.

Other incon

veniencies would follow from

Firft inconvenience.

Second inconvenience.

Third inconvenience.

In the first place, it will make it difficult for any of your Majefty's English subjects to administer justice in this province, as it will require much labour and study, and a more than ordinary acquaintance with the French language to attain a thorough knowledge of thofe laws.

In the next place, it will keep up in the minds of your Majesty's new Canadian fubjects the remembrance of their former government, which will probably be accompanied with a defire to return to it. When they hear the custom of Paris, and the parliament of Paris, and its wife decifions, continually appealed to as the measure of juftice in this country, they will be inclined to think that government to be beft, under which thofe wife laws could most ably be administered, which is that of the French king; which, together with the continuance of their attachment to the Popish religion, will keep them ever in a state of difaffection to your Majefty's government, and in a difpofition to shake it off on the first opportunity that fhall happen to be afforded them by any attempt of the French king to recover this country by force of

arms.

And in the third place, it will difcourage your Majesty's British fubjects from coming to fettle here when they fee the country governed by a fet of laws, of which they have no knowledge, and against which they entertain (though perhaps unjustly) ftrong prejudices.

Your Majefty's attorney general of this province is further of opinion, that the body of your Majesty's new Canadian subjects are by no means either so distressed or so discontented by the introduction

of

nefs and dilato

ceedings are the

of the English laws into this province as they are represented in the foregoing report: at leaft he has feen no proofs of either fuch great The expenfivediftrefs or high difcontent. What he has principally obferved to be rinefs of the the fubject of their complaints has been, either the expence or the English law prodilatoriness of our law-proceedings; which he therefore conceives principal fubftand in need of reformation: and he is of opinion, that to establish complaints of three courts of general jurifdiction in all matters criminal as well as civil in the province, to fit every week in the year (with a very few To erect three exceptions) in the towns of Quebec, Three Rivers, and Montreal, general jurif would be the most adequate remedy for thefe complaints..

jects of the

the Canadians.

royal courts of diction to hold: their fittings. weekly.

of laws for the

And as to the fubftance of the laws which are to be henceforwards admitted in this province, he conceives that the beft way of all to fettle thefe would be to make a code of them, that should contain To make a code all the laws of every kind, criminal as well as civil, that were ufe of the prointended to be of force here, to the exclufion of all other laws, vince. both French and English, that were not inferted in the faid code; by which means all pretence would be taken away both from the French. and British inhabitants of this province for complaining that they are governed by unknown laws. This he conceives to be a work of difficulty indeed, but by no means impracticable; and he apprehends that it would be a work of very great utility to the province, even. though it should be very imperfectly executed, and many important articles fhould happen to be omitted in it; provided only that those things that were inferted in it were useful and reasonable, and fet forth in a clear and proper manner: because he apprehends that: the rules fo inferted would be fufficient to govern at least all the common cafes that would happen in the ordinary courfe of human affairs, fuch as defcents in the right line, the right of reprefentation in grand-children whofe parents are dead, the dower of widows, the rents and fervices due to feigniors, the obligations and duties due from them to their tenants, the feignior's right to the common mutation-fines, his right of pre-emption of his tenant's land when the tenant is disposed to fell it, the rules of evidence in courts of justice, the folemnities neceffary to be obferved to give validity to a deed or will, and the like obvious and important matters; which would be fufficient to prevent the province from falling into confufion. And as to the nicer cafes which might be omitted in fuch a code, they might afterwards be fupplied by particular ordinances paffed from time to time for that purpose.

But

But if this measure of making fuch a code of laws fhould not be thought advifeable, your Majefty's attorney general of this province is humbly of opinion that it would be most expedient to let the English law continue to fubfift in this province as the general law To revive the of the province, and to pass an ordinance to revive those of the relating to land- former French laws which relate to the tenure, inheritance, dower, the distribution alienation, and incumbrance of landed property, and to the distribuof the effects of tion of the effects of perfons who die inteftate. His reasons for thinking that the French laws upon these heads ought to be revived, are as follows.

old French laws

ed property and

inteftates.

Laws of tenure.

Laws relating to the manner

incumbring

danded property.

And

These heads of law are three in number: First, thofe relating to the tenures of lands in this province, or the mutual obligations fubfifting between landlords and tenants with respect to them. Secondly, the laws relating to the power and manner of aliening, mortgaging, and otherwise incumbring landed property. Thirdly, the laws relating to dower, inheritance, and the diftribution of the effects of perfons who die inteftate. And these several heads of law ought, as he humbly apprehends, to be revived in this province upon feparate and diftinct grounds.

The laws of tenure, he conceives, ought to be confidered as having been already granted by your Majesty to your new Canadian fubjects by that article in the capitulation of 1760, by which your Majefty's general granted them the enjoyment of all their eftates, both noble and ignoble, and by the permiffion given them by your Majesty in the definitive treaty of peace in 1763, to continue in the poffeffion of them; these laws being effentially neceffary to fuch poffeffion and enjoyment. Such are the laws relating to the quitrents due by the freeholders, who hold by rent-fervice, to the feigniors, the mutation-fines, the right of pre-emption, and the rights of efcheat in certain cafes; all which conftitute the principal part of the property of the feigniors.

But the laws relating to the power and manner of aliening, of aliening and mortgaging, and otherwife incumbring, landed property, are not, as he apprehends, abfolutely neceffary to the enjoyment of the lands themselves, and therefore ought not to be reckoned quite fo facred and unchangeable as the laws of tenure themselves. Yet he conceives them to be very nearly connected with those

laws,