SESSIONAL PAPER No. 18 HILLSBOROUGH TO CARLETON.1 SIR, WHITEHALL, March the 6th 1768. I take the Opportunity of writing to you by the first Ship going directly to Quebec, since my Admission into Office, & also to send you Duplicates of my Four former Letters I come now to the Consideration of your Letters N° 17. 22. & 23.,2 in which your Prudence and Judgment, your Care of the King's Service, and your Benevolence to His Subjects, are equally conspicuous to His Majesty. I had the Honor to serve His Majesty at the Board of Trade. in the year 1763. when His Ma'ty was pleased to publish His Royal Proclamation relative to the new Colonies, and, whatever the legal sense conveyed by the words of that Proclamation may be, of which I pretend not to be a Judge, I certainly know what was the Intention of those who drew the Proclamation, having myself been concerned therein; And I can take upon me to averr, that it never entered into Our Idea to overturn the Laws and Customs of Canada, with regard to Property, but that Justice should be administered agreably to them, according to the Modes of administering Justice in the Courts or Judicature in this Kingdom, as is the Case in the County of Kent, and many other parts of England, where Gavel-kind Borough-English and several other particular customs prevail, altho' Justice is administered therein according to the Laws of England. It was most unfortunate for the Colony of Quebec, that weak, ignorant, and interested Men, were sent over to carry the Proclamation into Execution, who expounded it in the most absurd Manner, oppressive and cruel to the last Degree to the Subjects, and entirely contrary to the Royal Intention. The Distance of the Colony, the Difficulties arising from many Circumstances, unnecessary for me to enumerate, and the Differences of Opinion occasioned by various Causes, have prevented, as yet, the necessary Measures from being taken, to correct this original and fatal Mistake; But I trust I shall soon be impowered to signify His Majesty's Pleasure, 1 Canadian Archives, Q 5-1, p. 344. Wills, Earl of Hillsborough, and of the Kingdom of Ireland, was appointed the first Secretary of State for the Colonies when that Department was created in 1768. His appointment, as recorded in the Warrant Book, vol. 32, is dated 21st Jan. 1768. From Sept. 9th, 1763, he had been one of the Commissioners for Trade and Plantations. See Calendar of Home Office Papers, 1766-69, p. 422. In this despatch Hillsborough passes in review the various letters which had been received from Carleton since the former came into office, and as several of these relate to religious and trade matters the review of them is omitted here. Letter No. 17 is that of Nov. 21st, 1767, in which Carleton encloses a petition from British merchants in Canada, stating their objections to the complete enforcement in Canada of the English bankruptcy laws. Agreeing with their position, he has suspended the introduction of such laws for the present. See Q 5-1, p. 245. No. 22, is a letter of Dec. 10th, with enclosures, in response to a request from the Commissioners of the Treasury for information as to the revenue and expenditure of the Province. See Q 5-1, p. 299. No. 23, is the letter of Carleton to Shelburne of Dec. 24th, see p. 288. 6-7 EDWARD VII., A. 1907 to you, to carry into Execution, such as will not only relieve His Majesty's new Subjects from the uncertain, and consequently unhappy Situation, they are now in; but give them entire Satisfaction for the future, by securing to them their Property upon a stable Foundation, and rendering the Colony more flourishing and happy than it has ever been. I have, in the mean Time, His Majesty's Commands, to express His Satisfaction in your prudent conduct relative to the Applications mentioned in your Letter N° 17. to have been made to you for a Commission of Bankruptcy, as it is impossible to conceive, that it could ever be His Majesty's Intention signified, either by the Proclamation, or by the Ordinance for the Establishment of Courts of Judicature, to extend Laws of that particular and municipal Nature to the Colony, even if the Intention had been to have overturned the Customs of Canada, and it would be full as reasonable to make a poor Rate under the 43rd of Elizabeth, or to execute any other Act of Parliament of England, in Quebec, however intended for any local or particular purpose in this Kingdom. His Majesty approves of every Sentiment expressed in your Letter N° 23. upon which is founded the Idea of the Ordinance, a Draught of which you transmit with that Letter1; The Draught corresponds in almost every part with His Majesty's Opinions; But, as the whole State of the Colony will be immediately taken into Consideration, His Majesty's Pleasure is, that you should, for the present, postpone the enacting of that Ordinance; not doubting but you will, in the mean Time, continue to make use of every lenient and proper Argument, to convince His Majesty's new Subjects of His tender Concern for their Welfare and Security; and, by representing to them the natural Difficulties that must occur, in Regulations of so important a Nature, to be directed from so great a Distance, for the permanent Settlement of a Province, under Circumstances so uncommon and peculiar; prevail upon them to suffer patiently those Delays which are unavoidable. I desire you will do me the Honor to accept my sincerest Congratulations upon your Appointment to the Government of Quebec.2 I most truly rejoice at It, both on Account of His Majesty's Service, and the Prosperity and Happiness of His Mat'y's Subjects in that important Colony. I am &c HILLSBOROUGH Lieutenant Governor of Quebec Endorsed:-Drat to the Lieutenant-Governor of Quebec Whitehall March 6th 1768. 1 See p. 292. After acting as Lieutenant Governor of Quebec from April 1766 till the beginning of 1768, Carleton was appointed to the full position of "Captain General and Governor-in-chief of Quebec in America"-his appointment being dated Jan. 12th, 1768. See Calendar of Home Office Papers, 1766-69, p. 395. SESSIONAL PAPER No. 18 My Lord! CARLETON TO SHELBURNE.1 QUEBEC 12th April 1768 Again I find myself under a necessity to repeat very near the same apologies, as in my last about the Fees; the Truth is, that while Offices are farmed out to the best bidder, Tenants will make the most of their Leases, and in their Turn hire such Servants, as work at the cheapest Rate, without much Enquiry, whether the same is well or ill done; The inclosed List of Grants, Prior to the Conquest of the Country, has been greatly retarded, from the Persons employed therein, not being thoroughly versed in the Languages, at the same Time, it must be fairly acknowledged, the Ancient Records of the Country, are by no Means so clear and accurate as one could wish, However it will in General tolerably well exhibit, on what Terms, the Seigniorial Grants are held, for as to the Terres en Roture held immediately of the King, in the Towns of Quebec or Trois Rivieres, or else where, the same is not yet Compleated, but is in Hand, and shall be transmitted, without Loss of Time, as soon as finished. Some of the Privileges contained in those Grants appear at first to Convey dangerous Powers into the Hands of the Seigneurs, that upon a more minute Enquiry, are found to be really little else than Ideal; the Haute Moyenne et basse Justice, are Terms of high Import but even under the French Government were so corrected, as to prove of little Signification to the Proprietors, for besides that they could Appoint no Judge without the Approbation of Government, there lay an Appeal from all the Private to the Royal Jurisdictions in every Matter exceeding half a Crown; it could not therefore be productive of Abuse, and as the Keeping of their own Judges became much too Burthensome for the Scanty Incomes of the Canadian Seigneurs, it was grown into so general a Disuse, there were hardly three of them in the whole Province at the Time of the Conquest. All the Lands here are held of His Majesty's Castle of St. Lewis, and nothing I am persuaded, would be so agreeable to the People, or tend more to securing the Allegiance of the new Subjects to His Majesty, as well as ensuring the Payment of those Fines and Dues, which here stand in the Lieu of Quit Rents, than a formal Requisition of all those immediately holding of the King, to pay Faith and Homage to him at his Castle of St. Lewis; The Oath, which the Vassals take upon the Occasion, is very Solemn and Binding, they are obliged to furnish what they here Term their Aveu et Denombrement, which is an exact Account of their Tenants and Revenues, and to discharge whatever they owe their Sovereign, and to appear in Arms for his Defence, in Case His Province is ever attacked; And at the same Time that it would prove a Confirmation to the People of their Estates and Immunities, after which they most ardently sigh, it 1 Canadian Archives, Q 5-2, p. 477. * See Canadian Archives, Q 5-2, pp. 560-587. 6-7 EDWARD VII., A. 1907 might be a Means to recall out of the French Service, such as have yet Possessions in this Country, or at least oblige them to dispose of their Effects here, and although it may not be possible, at least for a Time, entirely to prevent that Intercourse, every Measure, that can tend towards putting an End to it, must be Useful. The Canadian Tenures differ, it is true, from those in the other Parts of His Majesty's American Dominions, but if confirmed, and I cannot see how it well can be avoided, without entirely oversetting the Properties of the People, will ever secure a proper Subordination from this Province to Great Britain; if it's detached Situation be Constantly Remembered, and that on the Canadian Stock we can only depend for an Increase of Population therein, the Policy of Continuing to them their Customs and Usages will be sufficiently Evinced. For the foregoing Reasons it has occurred to His Majesty's Servants here, that it might prove of Advantage, if, whatever Lands remain Vacant in the Interior Parts of the Province, bordering upon those, where the old Customs prevail, were henceforth granted on the like Conditions, taking care that those at Gaspey and Chaleur Bay, where the King's old Subjects ought chiefly to be encouraged to settle, were granted on such Conditions only, as are required by His Royal Instructions; And, upon this Consideration, have some Grants, in the interior Parts, been deferred Carrying into Execution, untill I could receive the sense of Government thereupon. Your Lordship may have perceived by some of my former Letters, that long before His Majesty's Order in Council of the 28th August1 came to my Hands, the Matter therein Recommended had been the Object of my most serious Consideration; the Receipt of that Order has induced me to alter some Part of the Plan I at first Proposed to myself, and have accordingly directed the Abridgement mentioned to Your Lordship in my Letter of 24th December (No. 23)2 and undertaken by some of the ablest Men in the Province to be further extended, and rendered more full and Copious, and to Comprise all the Laws in Force at the Conquest; in the mean Time, to give Your Lordship, and His Majesty's other Servants, some Idea of the Nature of them, I herewith transmit to Your Lordship a short Sketch, exhibiting only the Heads of those Laws; the several 1 See p. 285. 2 See p. 288. 3 The summary of French laws, here mentio ned, follows this despatch under the title. "Coutumes et usages anciens De La Province de Québec." and will be found in Q 5-2 pp. 482-559. The more complete compilation of the French law and constitution, represented as in force in Canada before the Conquest, was prepared, chiefly under the supervision of F. J. Cugnet, and sent to Britain in Sept. 1769. In 1772 several compilations of the French Canadian laws &c. were published; the most important being:-"An Abstract of those parts of the Custom of the Viscounty and Provostship of Paris which were Received and Practised in the Province of Quebec in the time of the French Government. Drawn up by a select Committee of Canadian Gentlemen well skilled in the laws of France and of that Province by the desire of the Hon. Guy Carleton Esq. Governor in Chief of the said Province, London 1772." "An Abstract of the Several Royal Edicts & Declarations and Provincial regulations and ordinances, that were in force in the Province of Quebec in the time of the French Government; and of the Commissions of the several Governors General and Intendants of the same Province during the same period. By Francis Joseph Cugnet Esq. Secretary to the Governor and Council of the said Province for the French Language. By direction of Guy Carleton 1772." SESSIONAL PAPER No. 18 Matters Recommended by that Order to the King's Servants here, shall be prepared with all the Dispatch, that the Importance, as well as Extent of the Subject, can possibly admit of. I am with much Respect and Esteem The Earl of Shelburne One of His Majesty's Principal Secretaries of State, &c. INSTRUCTIONS TO GOVERNOR CARLETON, 17681 INSTRUCTIONS to Our Trusty and Well beloved Guy Carleton First-With these Instructions You will receive Our Commission under Our Great Seal of Great Britain, constituting You Our Captain General and Governor in Chief in and Over Our Province of Quebec in America, bounded on the Labrador Coast by the River St John, and from thence by a Line drawn from the Head of that River through the lake St John to the South End of the Lake Nipisson; from whence the said Line crossing the River St Lawrence and the Lake Champlain in forty-five Degrees of North Latitude, passes along the Highlands which divide the Rivers that Empty themselves into the said River St Lawrence from those which fall into the Sea, and also along the North Coast of the Bay des Chaleurs and the Coast of the Gulph of St Lawrence to Cape Rosieres and from thence crossing the Mouth of the River St Lawrence by the West End of the Island of Anticosti, terminates at the aforesaid River St John. You are therefore to take upon you the Execution of the Office and Trust We have reposed in You, and the Administration of Government, and to do and Execute all things in due manner that shall belong to Your Command according to the several powers and Authorities of Our said Commission under Our Great Seal of Great Britain and these Our Instructions to You, or according to such further powers and Instruction as shall at any time. hereafter be Granted or appointed You under Our Signet and Sign Manual or by Our Orders in Our Privy Council, and you are to call together at Quebec, which We do appoint to be the place of Your residence, and the principal Seat of Government the following persons whom We do hereby appoint to be Our Council for Our said Province of Quebec, viz. William Hey, Our Chief Justice of Our said Province, Hector Theophilus Cramahé, James Goldfrap, Hugh Finlay, Thomas Mills, Thomas Dunn, Walter Murray, Samuel Holland, Francis Mounier, Benjamin Price, and Colin 1 Canadian Archives, M. 230, p. 61. |