6-7 EDWARD VII., A. 1907 Uncertain of their tenure in Canada, the jesuits have hitherto remained very quiet, but should the establishment be tolerated there, they would soon take the ascendant of all the other priests; the education of the canadians would be entirely in their hands, and averse as they may be at present to France, it exceeds any measure of credulity to suppose that they would ever become truly and systematically friends to Britain. It is therefore equally just and expedient in this instance, to assert the sovereignty of the king, and to declare that the lands of the jesuits are vested in his Majesty, allow ing, at the same time, to the jesuits now residing in Canada, liberal pensions out of the incomes of their estates. The information to be collected from the papers transmitted with the reference, is not particular enough to be the ground of an immediate law as to the property claimed by religious societies in France. The principle is clear, that every trust for their use, is void and devolves to the crown. But in applying that principle, the circumstances of each case must be considered, and, in general, it seems expedient to confirm all the titles of persons occupying lands under their grants; to make the terms of payment to the crown easier than to the former proprietors, and to apply the produce for the purposes of educating the youth of Canada, which deserves particular attention. But this subject is more fit for gradual regulations, pursuant to the instructions that may be given to your Majesty's governor, than to form an article in a general plan of laws to be inmediately carried into execution. They The convents in Canada do not fall under the same rule as the monasteries. are not much connected with the political constitution. They may, for a time, be necessary for the convenience and honor of families-perhaps it may be expedient always to retain some such communities there, for the honorable retreat of unmarried women. Certainly it would be inexpedient and cruel to dissolve them by any immediate law. No such change is essential to the political constitution, and whenever it becomes so, the remedy is easy, and the subjects will then receive it as a favor from the crown. The political and religious constitution of the province of Quebec being established, the next matter of inquiry is, what plan of civil and criminal law is best adapted to the circumstances of the province ? and this is not altogether an open question; for, Canada is not in the condition of a new settled country, where the invention of a legislator may exercise itself in forming systems. It has been long inhabited by men attached to their own customs, which are become a part of their nature. It has, of late, acquired some inhabitants superior in power, but much inferior in number, to its ancient inhabitants, equally attached to different usages. The prejudices of neither of these classe of men can be entirely disregarded; in policy, however, more attention is due to the native Canadian than the British emigrant, not only because that class is the most numerous; but because it is not the interest of Britain that many of her natives should settle there. The Canadian also has a claim in justice to the enjoyment of as much of his ancient laws regarding private rights, as is not inconsistent with the principles of the new government; for, as his property is secured to him, the laws which define, create, and modify it, must also be retained, otherwise his property is reduced to the mere possession of what he can personally enjoy. * * * * * * * It should also be provided that any Canadian subject of the age of twenty five, who is unmarried and without children, holding land immediately of the crown, may convert his tenure into a soccage holding, by which he shall have the power of devising the whole, and that the purchaser of land held of the king, may convert the tenure into soccage at his pleasure, and it shall then be held and enjoyed as by the law of England. * * * * * * * The criminal law of England, superior as it is to all others, is not, however, without imperfections; nor is it, in the whole extent of its provisions, adapted to the situation of Canada. It would be improper to transfer to that country all the statutes creating new offences on temporary or local circumstances. * * * * It is recommended by the governor, the chief justice, and the attorney general, in their report, to extend the provisions of the Habeas Corpus act to Canada. The inhabitants will, of course, be intitled to the benefit of the writ of Habeas Corpus at common law, but it may be proper to be better assured of their fidelity and attachment, before the provisions of the statute are extended to that country. SESSIONAL PAPER No. 18 The form of civil government for the province, as it now consists in the distribution of judicial authority, is the most difficult and the most important part of the plan, for, without an easy and exact execution, laws are of very little use to society. The several opinions reported to your Majesty, by the governor, the chief justice and the attorney general, concur in the causes of the complaints upon this head, and differ little in the remedies proposed. It is their opinion that the expense and delay of proceeding are at present very grievous, and they seem to think that the division of the province into three districts, and the establishment of courts of justice in each, as in the time of the French government, would afford some remedy to this evil. To diminish the expense of law suits, too great already for the poverty of the country, by adding to the number of persons who are to be maintained by the law, is at least a doubtful proposition. It is necessary, therefore, to consider whether other causes besides the want of proper judicatures, may have concurred to produce the grievance of which the Canadians complain, and whether other expedients, besides an increase of places and expense, may not, in part, remove it. The uncertainty of the law of the province must have been one principal cause of the expense of suits. That evil will, in time, be removed. The change of property, together with the alteration of the course of commerce consequential upon the conquest, producing new contracts in new forms, created a great deal of business for which there would be no established fees, and the ignorant execution of that business opened a new source of litigation. The same thing has happened in the other settlements, where, for a certain time, the gains of those who took upon themselves to act as lawyers, and of course the expense to the other inhabitants, of law proceedings, has been very great. But this evil is also temporary. Without disputing the reality of the grievance, one may suppose that it is a little exaggerated, for all the French lawyers who remained in Canada, were interested to magnify it. They partook of the profits arising from its continuance, and their profits were increased by exciting the complaints. I cannot conceive that this grievance would be removed by adopting the French judicature, for if one can trust the accounts given by themselves, the expense and the delay of law suits, are in France a most intolerable evil. * * The Canadians, it is said, complain, and not without reason, of the arrest and imprisonment in civil cases. There could be no objection to confine that severe proceeding to the cases in which they are accustomed to it. These are stated to be actions upon bills of exchange, debts of a commercial nature, and other liquidated demands, by which probably is to be understood actions upon bond and other instruments, where the sum demanded is certain. In other cases, the arrest upon mesne process, which is only used to compel appearance or answer, may be abolished, and in lieu of it the plaintiff might be allowed, after due summons, to enter an appearance for the defendant, and if more was required than a mere appearance, the constitution of the court is very well calculated to adopt the process of sequestration, which has already prevailed under the French government. The execution against the person of the debtor, after judgment, may also be laid aside, and, indeed, in an increasing colony it is very impolitic, and a very cruel proceeding. An effectual and speedy process against the goods and estate would, in most cases, answer the ends of justice much better. * * * * As the affairs of the colony require a very particular attention, and some regard must there be had to political considerations, it might be proper to attribute the cognizance of all questions concerning the rights of the clergy, the profits of benefices, and the presentation to them, to the council, with an appeal to England; and all the most material questions of police might, perhaps, be also subjected to their jurisdiction. 6-7 EDWARD VII., A. 1907 N° 1 ABSTRACT of such of the Regulations proposed in M Solicitor Genl Report as it may be expedient to establish by Act of Parliament-Inclosed in M' Sol. Genl Report of 6th Dec 1772.1 That it shall and may be lawful for the Govenor or Commander in Chief of the Province of Quebec, by and with the advice & Consent of such Persons as shali be appointed from time to time by His Majesty &c. to be a Council for assisting the said Governor in the Administration of the Province, not exceeding Twenty, nor less than Twelve, to make and ordain Ordinances for the public Peace, Welfare and good Govera ment of the said Province in all Cases whatsoever. Provided always, that no such Ordinance shall be made when less than a Majority of the said Councillors shall be present, nor at any Meeting of the Council, except those which shall be specially called for that purpose between the — day of and the day of unless upon some extraordinary and urgent Occasion, in which Case every Member of the Council resi lent at Quebec or within- Miles of the same shai! be personally summoned by the Governor to attent the same. Provided also that no Ordinance by which the Life or Limb of the Subject may be affected, or by which any Duties or Taxes shall be imposed, or by which the Laws of England hereby declared and enacted to be of Force and Validity in the said Province, or the Customs used in Canada, by this Act directed to be observed, may be altered or varied shall be of any Force or Effect until approved by His Majesty and such approbation signified by His Majesty in Council. That Copies of all Ordinances, so to be framed and ordained, shall, within months from the passing thereof (or sooner if Opportunity offers) be transmitted duly authenticated under the Seal of the Province by the Governor or Commander in Chief to the Commissioners for Trade and Plantations, and that the said Ordinances be laid by the said Commissioners for Trade and Plantations, before both Houses of Parliament as soon as may be after the same shall have been received by them from the said Province. That it shall and may be lawful for all His Majesty's Subjects of the Province of Quebec freely to profess their Religion in the said Province, without being subject to any Penalties or Prosecutions for the Exercise of the same, provided that they attempt nothing by Deed or Writing to the Prejudice of His Majesty's Supremacy in all matters Causes and Things ecclesiastical and civil. That it shall and may be lawful to and for any Person or Persons who shall be licensed by the Governor of the Province to ordain Priests or Deacons, and also to grant Licenses for Marriages as has been formerly used, but not to exercise any other ecclesiastical Jurisdiction or Authority. That all Crimes and Misdemeanors, commited in the Province of Quebec shall be tried and determined according to the Laws of England. Provided always that no Person shall suffer the Pains of Death upon Conviction for any Theft, or felonious taking without Force, where the Value of the thing taken shall be less than five Pounds, nor for any Felony where the Benefit of the Clergy hath been taken away from the Offender by any Statute enacted since the 23 year of the Reign of King Charles the Second. Provided also that in lieu of the Judgement to be given upon any Conviction for Felony, where the Offender is entitled to the benefit of Clergy, the Offender shall only be fined or imprisoned, or bound to his good Behaviour. Provided also that no Judgement upon any criminal Charge shall, after the Verdict given, be arrested upon any Objection of Informality in the Indictment or of any Discontinuance in the Record. 1 Canadian Archives, Dartmouth Papers, M 383, p. 240. These two papers give the chief features o Solicitor General Wedderburn's Report, in the shape of clauses of a bill, and may be compared with the Report of the Lords Commissioners for Trade and Plantations relative to the State of the Province of Quebec, p. 263, as also with the Quebec Act and the various draughts of bills for the settlement of the Government of Quebec which precede it. SESSIONAL PAPER No. 18 That the Laws & Usages touching the Tenure, Descent & Alienation of Land or real Property, and the Distribution of the Goods of such of His Majesty's Canadian Subjects as shall die intestate, which were in force on the 13th of Sept 1759, shall be observed and maintained in all Questions that shall arise concerning the same in any of the Court of Justice in the Province of Quebec, except in such cases as are hereafter declared. Provided always that nothing in this Clause contained shall be construed to extend to any Lands that have been granted by His Majesty, or shall hereafter be granted by His Majesty, His Heirs & Successors, to be holden in free & common Soccage: Provided also that it shall and may be lawful to and for any of His Majesty's Subjects at his age of 25 years to change the Tenure of an Estate held of His Majesty &c into free & common Soccage by any Deed executed in the Presence of two Witnesses and presented to the Chief Justice of the Province who shall summon a Jury to assess the Sum to be paid to His Majesty in lieu of the Profits of the Seigniory, and upon payment thereof shall direct the Deed to be enrolled, and the same being enrolled the Land shall from thenceforth be held as Lands in free & common Soccage are by the Laws of England. That all Wills & Testaments executed according to the Forms used in the Province of Quebec before the 15th of Sept 1759, shall be deemed equally valid & effectual as a Will executed by the Testator in the Presence of three Witnesses, pursuant to the Statute of Frauds and Perjuries. That in all Marriages heretofore contracted by and between any of His Majesty's Subjects of the Province of Quebec; the Rights of the Husband and Wife and of the Issue, in respect of their personal Property shall be adjudged according to the Laws and Usages which obtained there before the 15th of Sept 1759; But that in all Marriages celebrated after the day of where there are no Articles of Settlement the Parties shall be deemed in respect to their personal Property to have contracted under the Law of England. No. 2 ABSTRACT of such of the Regulations as the provincial Legislature of Quebec may carry into Execution. Inclosed in Mr Sol. Genls Report of the 6th Dec 1772. That in all Benefices which now are or hereafter shall become vacant the Patronage whereof belongs to any of His Majesty's Subjects of Canada, the Patron shall nominate the Ecclesiastic to His Majesty's Governor, who shall issue a Licence to the Person so nominated, and where there is no Lay Patron, or where no Person shall be nominated within Six Months, the Governor shall nominate and licence some Person, being a Priest born in Canada or the British Dominions, or resident in Canada for the space of five years. That every Priest so licensed as aforesaid shall hold his Benefice with all the usual Emoluments and Dues thereto belonging during his natural Life, unless he shall be licensed to another Benefice, or upon Complaint made by any Proprietor of Land in the Parish to His Majesty's Governor & Council; and that in such Suits for the Recovery of his Dues the Production of the Licence shall be sufficient to prove him the Incumbent. Provided always that no Inhabitant or Occupier of any Estate professing the Protestant Religion and having taken the Oaths of Supremacy and subscribed the Declaration against Popery, shall be obliged to Pay Tithes or other Dues to any Popish Incumbent of any Living; But that every such Inhabitant or Occupier of Land shall be obliged to register his Name in a Book to be kept for that purpose by the Clerk of the Council, and that it shall and may be lawful for the Receiver General of the Province to ask, sue for, & recover, by Action or Bill, the Tithes of the Protestant Inhabitants or Occupiers of Land to be applied for the Maintenance of Protestant Divines, in such manner & Proportions, as His Majesty's Governor, with the Advice of the Council, shall appoint. That all Seigniories, Lands and Estates, which, on the fifteenth day of September, One thousand seven hundred and fifty-nine, belonged to certain Persons assuming to themselves & commonly called the Society of Jesus, shall be vested in His Majesty His 6-7 EDWARD VII., A. 1907 Heirs and Successors freed & discharged from all Gifts, Grants, Leases and other alienations made thereof, or of any part thereof, since the said fifteenth day of September, one thousand, seven hundred and fifty nine, but charged & chargeable with the Pay ment of the Sum of Forty Pounds to every Person of the said Society resident in the Province of Quebec upon the said fifteenth day of September, one thousand seven hundred and fifty nine, or who has since been resident there for the Space of five Years, for and during his natural Life. In Lieu of the Homage done by the Tenant to the Lord of whom the Land is holden, every Tenant, when and as often as the said Homage should have been done, shall deliver to the Lord at the Manor Place a Declaration in writing, expressing the Tenure of the Land, and the Title of the Tenant, whether by Purchase or Descent, to which Act the Lord shall, within two Days, declare his Assent in writing upon the same Instrument, and the same shall then be entered in a Register to be appointed for that purpose at the Chief Town of the District. That no Sale of Land bona fide made shall, after the Purchase Money paid for the same, be rescinded by the Lord of whom the Fee is holden, or by the nearest Relation of the Lineage of the Vender claiming a Right of Pre-emption therein by virtue of any former Custom. That the Governor or Commander in Chief shall issue a Commission or Commissions under the Seal of the Province to any three Persons, being Subjects of His Majesty, to hear & determine in a summary manner all Causes not exceeding the Sum of Thirty Pounds, taking to their assistance a Person chosen by themselves of the Profession of the Law, licensed by the Governor, and also one other Person nominated by the Attorney General, which Person shall act as their Clerk, but neither of the said Persons shall have any Vote. Provided always, that where the Sentence shall amount to more than the Sum of Twelve Pounds, the whole Proceeding and the Evidence which shall have been given, shall at the desire of either Party, be transmitted to the Chief Justice of the Province within the Space of fourteen days from the Judgement, who shall within fourteen days return the same to the Clerk of the said Commission with his Affirmance, Reversal, or Variation thereof, and the same shall be executed as if the Sentence had been originally pronounced by the Commissioners. That these Commissioners shall be Conservators of the Peace, and have Power to punish all Misdemeanors upon a summary Complaint by Fine and Imprisonment, not exceeding twenty four Livres and three Months. That it shall be lawful for any one of them to commit for a Breach of the Peace for forty eight Hours; but the Person so committed shall not be longer detained, unless it shall seem proper to two of the Commissioners to detain him for a longer Space; and in that Case the Cause of the Commitment with the Information shall be immediately transmitted to the Chief Justice. That the Superior Court of the Province shall be held at Quebec on the first day and shall meet and adjourn itself from time to time, and shall consist of the Chief Justice and two other Judges, who shall have full Power and Authority_to determine all Matters & Things in which any real or personal Right, or the quiet Enjoyment thereof is demanded; by any Action real personal possessory or mixt, and also by any Bill in Equity according to the Laws of England, the Customs of Canada, and the general Principles of Justice and Equity; And that their Judgements shall be final in all Cases, where the Value of the Thing in question does not exceed three hundred Pounds; and, in all cases of superior Value, the Party aggrieved by the Sentence may, upon Payment of the Sum decreed (Security being given to the Satisfaction of the Court by the Party receiving it to refund the same in Case of a Reversal of the Judgement) be at Liberty to appeal to His Majesty in Council, which appeal shall be allowed. That the Chief Justice of the Province shal hold four Sessions for the Trial of all criminal Offences in every Year: two at Quebec, one at Montreal, and one at Trois Rivieres. But in case of any reasonable Excuse approved by the Governor, it shall be lawful for him to appoint the Attorney General, or any other Person, with the Approbation of the Governor, to hold the Sessions in his Place, who shall be appointed by a Special Commission issued under the Seal of the Province a Copy of which with the |