SESSIONAL PAPER No. 18 That in case of any Offence committed, by which the Peace and good Government of the Province may be effected, it shall be lawful for the Attorney General to apply to the Council for an Order to remove the Offender to be tried at Quebec, or to apply for a Special Commission for the Trial of the Offence in the Place where it has been committed. REPORT OF ATTORNEY GENERAL, EDWD. THURLOW.1 Canada had been holden by the French king, in the form of a province, upwards of two hundred years; and considerably peopled near one hundred and fifty years, by the establishment of a trading company, with great privileges and extensive jurisdictions, seconded by the zeal of the age, to propagate the gospel in foreign parts.-Parishes, convents of men and women, seminaries, and even a bishoprick were established there. The supreme power, however, remained with the king, and was exercised by his governor and lieutenant-general with the assistance of a council. About one hundred years ago, Louis the fourteenth resumed the country, and gave it the constitution which was found at the conquest. He gave them a body of laws, namely, those of the Prêvoté, and Vicompté de Paris. The sovereign power remained with the king. But because the immense distance made it impossible to provide them with local regulations so speedily as the occasion might demand, he gave them a council, with authority to order the expenditure of public money, trade with the savages, and all the affairs of police, to appoint courts and judges at Quebec, Trois Rivières and Montreal, and to be judges themselves in the last resort. This council consisted of the governor, representing the king's person; and the bishop and five notable inhabitants, named by the two first. To this establishment in a few years were added two more councillors, all seven named by the king; and an intendant of justice, police and revenue, who held the third place in council, and acted as president, collecting voices, &c., and who had, by a separate commission, very large power, particularly in police, wherein he could, if he thought fit, make laws without the council; and in the ordering of the revenue, in which he was absolute; and judge without appeal, of all causes relative to it, as he was, indeed, in all criminal cases. Office, rank and authority were annexed to land, and otherwise divided among the gentry, with due degrees of subordination; so that all orders of men habitually and perfectly knew their respective places, and were contented and happy in them. The gentry, in particular, 1 Attorney General Thurlow's Report was dated Jan. 22nd, 1773. The extracts from it here given are derived from Christie's History of Lower Canada, vol. I, p. 46. (See note 1, p. 424.) Edward Thurlow was appointed Solicitor General in March, 1770, and Attorney General in June, 1771. In June, 1778, he was appointed Lord Chancellor, a position which he held, except for a short interval in 1783, until 1792. On his resignation he was created Lord Thurlow of Thurlow, in Suffolk. 6-7 EDWARD VII., A. 1907 were drawn into a still closer attachment to the governments of their posts, in the provincial and royal troops which were kept up there. This system, a very respectable and judicious officer, your Majesty's chief justice of Quebec,1 justly extols, as being admirably calculated to preserve internal tranquility and due reverence and obedience to government, and endeared to the natives by long usage, and perfect conformity to their manners, habits and sentiments. The natives, at the conquest, were one hundred and twenty thousand, whereof about one hundred and twenty-six were noble. And their laws were, such part of the laws of Paris, as had been found necessary and applicable to their situation, reformed, supplied, changed and enlarged by the king's ordinances and those of the provincial legislature. These have been very judiciously collected, and are among the papers which your Majesty commanded me to consider.? On the eighth of September, 1760, the country capitulated in terms which gave to your Majesty all that which belonged to the French king; and preserved all their property, real and personal, in the fullest extent, not only to private individuals, but to the corporation of the West India company, and to the missionaries, priests, canons, convents, &c., with liberty to dispose of it by sale if they should want to leave the country. The free exercise of their religion by the laity, and of their function by their clergy, was also reserved.3 The whole of these terms were stipulated on the 10th of February 1763, in the definitive treaty of peace. By your Majesty's proclamations of the 7th October, in the third year of your reign, (1763) your Majesty was pleased to declare that four new governments were erected, of which Quebec was one, containing a large portion of that country which had been included in the French government of Canada, some parts of which were settled in such manner as hath been mentioned before, but great districts of which still remained rude and barbarous. And considering that it would greatly contribute to the speedy settling of the new governments, that your Majesty's loving subjects should be informed of your paternal care of the security of the liberty and properties of those who are or shall become inhabitants thereof, your Majesty thought fit to declare that your Majesty had, in the constitution of these governments, given express power and direction to the governors of the said colonies respectively, that so soon as the state and circumstances of the said colonies would admit thereof, they shall, with the advice and consent of your Majesty's council, summon and call general assemblies within the said governments respectively, in such manner and form as is used and Evidently referring to the Report of Chief Justice Hey, submitted for consideration but which cannot now be found. 2 See note 3, p. 300. See Articles of Capitulation of Montreal, p. 7. which was one of the documents See note 1, p. 370. See Treaty of Paris, 1763, p. 97; especially article 4, p. 99. SESSIONAL PAPER No. 18 directed in those colonies and provinces in America, which are under your Majesty's immediate government. And that your Majesty had given power to the said governors, with the consent of your Majesty's said council and the representatives of the people, so to be summoned as aforesaid, to make, constitute and ordain laws, statutes and ordinances for the public peace, welfare, and good government of your Majesty's said colonies, and of the people and inhabitants thereof, as near as may be, agreeable to the laws of England, and under such regulations and restrictions as are used in other colonies; and that in the mean time, and until such assemblies can be called as aforesaid, all persons inhabiting in or resorting to your Majesty's said colonies, might confide in your royal protection for the enjoyment of the benefit of the laws of England, for which purpose your Majesty declared that your Majesty had given power under the great seal to the governors of your Majesty's said colonies respectively for the erection of courts of judicature and public justice within the said colonies, for the hearing and determining all causes, as well criminal as civil, according to law and equity, and as near as may be, agreeable to the laws of England, with liberty to all persons who may think themselves aggrieved by the sentence of such courts, in all civil cases, to appeal under the usual limitations and restrictions, to your Majesty in your privy council.1 On the 21st of November 1763, your Majesty appointed Mr. Murray, to be governor of Quebec, commanding him to execute that office according to his commission, and instructions2 accompanying it, and such other instructions as he should receive under your Majesty's signet and sign manual, or by your Majesty's order in council, and according to laws made with the advice and consent of the council and assembly. He is further authorised, with the consent of the council, as soon as the situation and circumstances of the province will admit of it, to call general assemblies of the freeholders and planters, in such manner as in his discretion he should think fit, or according to such other further instructions as he should receive under your Majesty's signet or sign manual, or by your Majesty's order in council. The persons duly elected by the major part of the freeholders of the respective parishes and places, before their sitting, are to take the oaths of allegiance, and supremacy, and the declaration against transubstantiation. The said governor, council and assembly are to make laws for the public peace, welfare and good government of the said province, and for the benefit of your Majesty, not repugnant, but as near as may be to the laws of Great Britain, such laws to be transmitted in three months to your Majesty, for disallowance or approbation, and if disapproved, to cease thenceforward. The governor is to have a negative voice, and the power of adjourning, proroguing and dissolving all general assemblies. 1 From Proclamation of 1763, p. 163. * See Governor Murray's Commission, p. 173; and Instructions, p. 181. 6-7 EDWARD VII., A. 1907 Some criminal laws must be put into immediate and constant execution, to preserve the peace of the country. The English were so. They act most strikingly upon the minds of the people, and must be administered without any equitable qualifications. These are said to be universally received. In truth, they could neither be refused nor avoided. : Three very different opinions have been entertained. There are those who think that the law of England, in all its branches, is actually established, and in force in Quebec. They argue that your Majesty, upon the conquest, has undoubted authority to establish whatever laws should seem fittest in your royal wisdom that your Majesty's proclamation dated the seventh day of October, 1763, was a repeal of the existing laws, and an establishment of the English laws in their place, in all parts of the new subjected countries: that the several commissions to hear and determine by the laws of England, were an actual and authoritative execution of those laws; and that the law, as it prevails in the province of New York and the other colonies, took its commencement in the same way, and now stands on the same authority. If your Majesty should be pleased to adopt this opinion, it seems to afford a full answer to the whole reference, by exhibiting not only a general plan, but a perfect system of civil and criminal justice, as perfect as that which prevails in the rest of your Majesty's dominions, or at least it leads off to questions widely different, touching the expediency of a general change in the established laws of a colony, and touching the authority by which it ought to be made. Others are of opinion that the canadian laws remain unrepealed. They argue that according to the notion of the english law, upon the conquest of a civilized country, the laws remain in force till the conqueror shall have expressly ordained the contrary. They understand the right acquired by conquest, to be merely the right of empire, but not to extend beyond that, to the liberty and property of individuals, from which they draw this consequence, that no change ought to be made in the former laws beyond what shall be fairly thought necessary to establish and secure the sovereignty of the conqueror. This idea they think confirmed by the practice of nations, and the most approved opinions. "Cum enim omne imperium victis eripitur relinqui illis possunt, circa res privates, et publicas minores suæ leges, suique mores, et magistratus hujus indulgentiæ pars est, avitæ religionis usum victis, nisi persuasis non eripere." Grot. 3. 15. 10.; and if this general title to such moderation could be doubted, they look upon it to be a necessary consequence of the capitulation and treaty alluded to before, by which a large grant was made them of their property and personal liberty, which seem to draw after them the laws by which they were created, defined and protected, and which contain all the idea they have of either. This moderated right of war, flowing from the law of nations and treaties, they think may have some influence upon the interpretation of the public acts above mentioned. SESSIONAL PAPER No. 18 Though the proclamation of 7th October, 1763, is conceived in very large terms, generally enough to comprehend the settled countries together with the unsettled, yet the purview of it seems to apply chiefly if not altogether to the unsettled, where the laws of England obtain a course till otherwise ordered; for it seems to assume and proceed upon it, as manifest that the laws of England are already in force, which could not be true of any settled country reduced by conquest. It also recites for its object that it will greatly contribute to the speedy settling our said new government; and at any rate, they think it too harsh a conclusion to be admitted that such an instrument in the state thereof, not addressed to the Canadians, nor solemnly published among them, nor taking any notice of their laws, much less repealing them, should be holden to abrogate all their former customs and institutions, and establish the english laws in every extent and to every purpose, as it may be thought to do in unsettled countries, which conclusion, however, they know not how to avoid, but by confining it to those countries where no settled form of justice existed before. If it be true that the laws of England were not introduced into Canada by this proclamation, they consider the several commissions above mentioned, to hear and determine according to those laws, to be of as little effect as a commission to New York to hear and determine according to the laws of Canada. * Others, again, have thought that the effect of the above mentioned proclamation, and the acts which followed upon it, was to introduce the criminal laws of England, and to confirm the civil law of Canada. In this number were two persons of great authority and esteem; -Mr. Yorke and Mr. De Grey, then Attorney and Solicitor General, as I collect from their report of the 14th April, 1766. One great source, they represent, of the disorder supposed to prevail in Canada, was the claim taken at the construction put upon your Majesty's proclamation of 1763, as if it were your Majesty's intention, by your Majesty's judges and officers of that country at once to abolish all the usages and customs of Canada, with the rough hand of a conqueror, rather than in the true spirit of a lawful sovereign, and not so much to extend the protection and benefit of your Majesty's english laws to your new subjects, by securing their lives, liberties and properties, with more certainty than in former times, as to impose new, unnecessary and arbitrary rules, especially in the titles to lands, and in the modes of descent, alienation and settlement, which tend to confound and subvert rights instead of supporting them. There is not, they observe, a maxim of the common law more certain, than that a conquered people retain their ancient customs till the conqueror shall declare new laws. To change at once, the laws and manners of a settled country, must be attended with hardships and violence. And, therefore, wise conquerors having provided for the security of their domin 1 See Report of Yorke and de Grey, p. 251. |