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to legislation is Expressed by the King and Parliament, as in all matters relating to the executive power it is expressed by the King alone; that therefore the Parliament only have a power to make laws for the province of Quebec, or to introduce any part of the laws of Great Britain there, or to delegate such a power of making or introducing laws to any other hands, notwithstanding it may happen that in fact such a power may inadvertently have been delegated to the governor and council of the province by a private instruction of the King alone. For if the contrary doctrine were true, that the King alone had the whole legislative power in the province of Quebec, it would follow, that not only all the conquered Canadians, but all the new English settlers there, would become slaves or subjects to an absolute and arbitrary government, the moment they set their foot there.

It is therefore to be wished, that an Act of Parliament might be obtained that at once declared what laws should take place in the province of Quebec, whether the laws of the conquered, or the laws of Great Britain, or some of the laws of the conquered, and some of the laws of Great Britain; Or whether any other laws should be introduced there, more peculiarly fitted to the circumstances of the province; and if any, then what laws should be so introduced: Or, if this detail be thought too troublesome for the Parliament to enter upon, and their informations concerning the state of the province should be deemed to be as yet too imperfect to enable them to go through such a business with propriety, then it is to be wished that an act of Parliament may be obtained, by which such a legislative power of making laws and ordinances for the good government of the province might be delegated to the governor and council, as has been already exercised by them by virtue of an instruction from the King alone. By such a delegated parliamentary authority, they may enquire into the state of the Canadian laws and customs already in force there, and may revise them and reduce them into writing, and enact such of them as shall be found beneficial to the province, and fit to be continued; and may introduce such parts of the laws of England, as they shall think to be for the advantage of the province; and likewise as occasion offers, make such other new laws and regulations as shall be necessary for the good government of it: And in so doing they will have a due regard to the heads of advice suggested by Mr. Attorney Yorke, and to such other intimations and instructions as the government shall think proper to communicate to them. And lest this legislative power should be abused or injudiciously executed by the governor and council, there might be a clause in the act of Parliament directing them to transmit these several laws and ordinances to the King and Privy Council in England, to be by His Majesty in council allowed or disallowed, as his Majesty shall see cause. Only they should be in force till disallowed, and, if not disallowed within a certain time, as for instance two years, they should then be in force for ever, unless repealed by act of Parliament. Laws and ordinances founded on such a parliamentary authority will easily find obedience from the people, which it is to be feared no others will; and the judges of the province will carry them into execution with ten times as much spirit and confidence as if they were doubtful of their legal validity.

Suppose a Criminal in Canada to be guilty of an offence that is capital by the laws of England, but is not so by the laws of Canada that have hitherto been received, (a supposition that is no way difficult, as the criminal law of England abounds with capital offences), in what manner shall such a man be punished, unless there is a parliamentary declaration determining the punishment that shall attend his crime? Could any lesser authority warrant the infliction of death for such a crime? Or would any judge chuse, though he should be sure of never being called to account for it, to pass such a sentence without the highest authority? But if the punishments of crimes be settled by authority of Parliament, whether immediately by the Parliament itself, or mediately by ordinances made by the governor and council of the province, by virtue of a legislative authority

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communicated to them by act of parliament, the judges will be under no other difficulty what punishments to inflict upon the several criminals, that come before them, than they are in Great Britain itself.

Some persons are of opinion, that the laws of Great Britain do at once take place in a conquered province, without any authoritative introduction of them, either by the King, or Parliament. But this opinion seems destitute of foundation, and is sufficiently refuted by the advice of the learned Mr. Yorke', His Majesty's attorney-general, who has advised that the Canadians should be permitted to retain their own laws, relating to inheritances and the alienation of their real estates, which would be impossible without an act of Parliament for that purpose, if the whole System of the laws of England did ipso facto become the law of the province upon its being conquered, or ceded to the Crown. Indeed, the whole system of the laws of England, taken in the gross, and without a selection, would be by no means a blessing to the Canadians. The game-laws, the poor-laws, the fictions and subtleties in various sorts of actions and conveyances, the niceties arising from the doctrine of uses, and the tedious and operose instruments founded on them, would really be a great misfortune to them; and from their novelty and strangeness, would be thought to be a much greater. This doctrine therefore of the instant validity of the whole mass of the laws of England throughout the conquered Province cannot be true. And if the whole system of those laws is not valid there, then certainly no part of them can be so. For if they are, then who shall distinguish which of them are valid there and which are not?

It may therefore be concluded, as at first, that none of the laws of England are valid in the conquered province ipso facto by virtue of the conquest,or cession, without a positive introduction there by a sufficient authority and this sufficient authority seems, for the reasons already mentioned, to be only the Parliament of Great Britain.

As to the erecting an assembly in that province, it is a measure which probably will not for some years to come be found expedient. If an assembly were now to be constituted, and the directions in the governor's commission, above alluded to, were to be observed, by which none of the members elected there are to be permitted to sit and vote in the assembly til they have subscribed the declaration against Popery, it would amount to an exclusion of all the Canadians, that is, of the bulk of the settled habitants of the province-An assembly so constituted, might pretend to be a representative of the people there, but in truth it would be a representative of only the 600 new English settlers, and an instrument in their hands of domineering over the 90,000 French. Can such an assembly be thought just or expedient, or likely to produce harmony and friendship between the two nations? Surely it must have a contrary effect.

On the other hand, it might be dangerous in these early days of their submission, to admit the Canadians themselves to so great a degree of power. Bigotted, as they are, to the Popish religion, unacquainted with, and hitherto prejudiced against the laws and customs of England, they would be very unlikely for some years to come, to promote such measures, as should gradually introduce the Protestant religion, the use of the English language, of the spirit of the British laws. It is more probable they would check all such endeavours, and quarrel with the governor and council, or with the English members of the assembly, for promoting them. Add to this, that they are almost universally ignorant of the English language, so as to be absolutely incapable of debating in it, and consequently must, if sch an assembly were erected, carry on the business of it in the French guage, which would tend to perpetuate that language, and with it their Prejudices and affections to their former masters, and postpone to a very sant time, perhaps for ever, that coalition of the two nations, or the ting down the French nation into the English in point of language, affections, religion, and laws, which is so much to be wished for, and which 1 See No. X.

ress

otherwise a generation or two may perhaps effect, if proper measures are taken for that purpose. And further it may be observed, that the Canadians themselves do not desire an assembly, but are contented to be protected in the enjoyment of their religion, liberties, and properties, under the administration of his Majesty's governor and council. If, to give a proper stability to this mode of government, it is carried on by authority of Parliament, and is properly superintended, as no doubt it will be, by the wisdom of his Majesty's Privy-Council, they will think themselves extremely happy under it. The persons who most desire the immediate constitution of an assembly, are some of the six hundred English adventurers, who probably are ambitious of displaying their parts and eloquence in the characters of leading Assemblymen.

But if an assembly is to be constituted, even this too had better be done by act of Parliament than by the King's single authority, as it is no less than severing from the general body of his Majesty's dominions a particular part of them, with respect to the purposes of making laws and imposing taxes. Could the King, if he thought proper, and a particular county of England was to desire it of him, sever that county from the rest of England, and no longer summon any of its members to Parliament, but instead thereof constitute a little Parliament in that County itself, that should make laws and lay taxes for the inhabitants of that single county? It is presumed that he could not: and the erecting an assembly in a conquered province is an act of much the same nature. It is true indeed, that some of the American charters and assemblies owe their rise to this authority: but this was in the reign of the Stuarts, who were fond of extending their prerogative; and, on account of the inconsiderableness of the colonies at that time, these things were then unnoticed; so that they do not prove the strict legality of the practice. Since that time these charters have been put in practice by the colonies, and acquiesced in by the mother-country, and in some measure recognized in Parliament; and this usage, acquiescence and recognition are in truth their best support.

But if an assembly is to be constituted, in which the Catholics or Canadians are to be admitted, (as in justice and reason they ought to be if any assembly at all is to be erected), the authority of Parliament seems to be still more necessary to give validity to such a measure.

For the reasons that have been just now mentioned, it seems evident that the measure of erecting an assembly in the province of Quebec i somewhat premature. How soon it will become expedient and proper experience only can shew. But in the mean time, however short that tim may be, it seems necessary to have recourse to the authority of Parliamen for settling the government of the province, and removing the difficultie that obstruct the settlement in the three great articles of Religion, Lay and Revenue. It is therefore the humble request of all the gentlemen wh have lately been appointed to the principal offices in the government c Quebec, to his Majesty's Ministers of State, that they would use the influence and endeavours to procure such an act of Parliament as the shall upon the whole matter think to be necessary, to remove the difficulti that have been stated, and to enable the said gentlemen to administer th government of that province in their several departments, with security themselves, and advantage to the province.

XIII

COMMISSION OF THE CHIEF JUSTICE, 1766

[Trans. Shortt and Doughty.]

GEORGE THE THIRD, by the Grace of God, of Great Britain, France, and Ireland, KING, Defender of the Faith, and so forth; To our Trusty and well beloved WILLIAM HEY, Esquire, Greeting.

Province of

treasons,

Know, ye, that we having taking into our Royal Consideration, Your Loyalty, Integrity, and ability, Have, assigned, Constituted, and appointed, AND WE, do hereby assign, Constitute, and appoint, you, the said Commission WILLIAM HEY, our Chief Justice of, and in our Province of Quebec in to be Chief America; To enquire by the Oaths of honest and lawful men of the pustice of the province aforesaid, and by other lawful ways, Methods, and means, by Quebec. which you can or may the better Know, as well within liberties as without, of whatsoever Treasons, misprisions of Treason, Insurrections, Rebellions, Murders, Felonies, Homicides, Killings, Burglaries, Rapes of Women, Unlawful Congregations and Assemblies, words spoken, Misprisions, Confederacies, False Allegations, Trespasses, Riots, Routs, Escapes, Contempts, Falsities, Negligencies, Concealments, Maintenances, Oppressions, Cham-Power to porties, Deceits, and other Misdoings, Offences, and Injuries whatsoever, inquire of all as also of the accessaries thereto within the province aforesaid, as well felonies, and within liberties as without, by whomsoever and howsoever had, done, per- other offences; petrated, or Committed, or which hereafter may happen to be done, perpetrated or Committed, and by whom, to whom, when, where, and how, and of all other articles and Circumstances, the premises, or any of them, and the same any wise Concerning: And the said treasons and other the premises to hear to hear and and determine, according to the law and Custom of that part of our King-according to dom of Great Britain called England, and of our said province of Quebec, the laws of hereafter to be made. THEREFORE WE Command that, at such certain England and days and places as you shall appoint, You make diligent inquiry of the the ordinances of the province premises; and all and singular the premises you hear and determine; and hereafter to the same do and fulfil in form aforesaid, doing therein that which to be made. Justice doth belong or appertain, according to the Law and Custom of that part of our Kingdom of Great Britain called England, and of our said province of Quebec hereafter to be made: Saving to us our Amerciaments and other things thereby to us belonging; for we will Command all and every our Sheriffs or provost Marshal's of our province aforesaid; That at such certain days, and places as you our Chief Justice shall make known to him, them, or any of them, they cause to come then and there before you such and so many honest and lawful men of our said province as well within liberties as without, by whom the Truth of the matter may be the better Known and inquired of.

therein

AND FURTHER, KNOW YE That we have assigned, Constituted, Power to and appointed, and by these presents, do assign, Constitute and appoint deliver goals you, the said WILLIAM HEY, our Goal of our Province aforesaid, of the of prisoners prisoners therein hereafter to be to deliver. AND, therefore we Command confined. you that, at such Certain days and places as you shall appoint, you come to our Court-House of our said Province the Goal in our said province of the prisoners hereafter therein to be to deliver, doing therein what to justice doth, or may, belong or appertain, according to the Law and Custom of that part of our Kingdom of Great Britain called England, and of our said province of Quebec hereafter to be made; saving to us our amerciaments and other things thereby to us belonging: For we will Command all and every our Sheriffs and provost Marshals of our said Province of Quebec that, at such Certain days and places as you our Said Chief Justice all make known to him, them, or any of them, they Cause to Come then and there before you our said Chief Justice all the prisoners of the same Goal and their attachments.

and determine

AND FURTHER KNOW YE That we have assigned, Constituted, Power to hear and appointed, and by these presents, do assign, Constitute and appoint all civil suits

and actions,

mixt, either between the

King and a subject, or between subject and subject.

YOU, the said WILLIAM HEY, Our Chief Justice of Our Supreme Court whether real, of Judicature of our said province of Quebec, to inquire by the oaths of personal, or honest and lawful men of the province aforesaid, and by other lawful ways, methods and means, by which you can or may the better Know, as well within Liberties as without, of all civil pleas, actions, and suits, as well real and personal, as mixed, between us and any of our Subjects, or between party and party, by whomsoever had, brought, sued and Commenced, and of all other articles and circumstances the premises, or any of them, any wise Concerning: and the said pleas, actions, and suits, and every of them, to hear and determine in manner and form aforesaid, doing therein that which to Justice doth belong and appertain according to the Laws and Customs of that part of our Kingdom of Great Britain Called England, and the Laws, Ordinances, Rules, and Regulations of our said province of Quebec, hereafter in that behalf to be Ordained and made. THEREFORE WE Command you that, at such Certain Days and places, as you shall appoint, you make diligent inquiry of the premises; and all and singular the premises to hear and determine in manner and form aforesaid, doing therein that which to justice doth belong or appertain according to the Law and Custom of that part of our Kingdom of Great Britain Called England, and the Laws, Ordinances, Rules, and Regulations, of our said province of Quebec hereafter in that behalf to be made: FOR WE will Command all and every Our Sheriffs or provost Marshal of our province aforesaid that at such Days and places, as you our Said Chief Justice shall make Known to him, them, or any of them, they Cause to Come then and there before you, such and so many honest and lawful men of our said province, as well within liberties as without, by Whom the truth of the matter may be the better Known.

This Office to

be held during the King's pleasure and the Chief

Justice's resi

dence in the Province.

TO HAVE, HOLD, AND EXERCISE the said Office of our Chief Justice of and in our Said province of Quebec, for and during our Royal Will and pleasure and your Residence within our Said province; Together with all and Singular the Rights, profits, free priviledges, and Emoluments to the said Office belonging, in as full and ample manner as any other Chief Justice of any of our provinces of America HATH heretofore held and Enjoyed, or of right ought to have, hold, or Enjoy, the same with full power and authority to hold the Supreme Courts of Judicature at such places and times as the same may or ought to be held within our said province.

IN TESTIMONY whereof we have Caused these our Letters to be made patent and the Great seal of our said province of Quebec, to be hereunto Affixed, and to be entered on record in one of the Books of patents in our Registers Office of Inrollments of the said Province WITNESS Our Trusty and well beloved. The Honble. Guy Carleton, Esquire, Our Lieutenant Governor and Commander in Chief in and over our said province of Quebec and the Territories thereon depending in America, at our Castle of Saint Lewis in our said City of Quebec, The Twenty-fifth Day of September in the Year of our Lord one Thousand seven hundred and sixtysix, and in the Sixth Year of our Reign.

(Signed) GUY CARLETON1.

1 Murray was recalled to England in April, 1766, but he continued to hold his office as Governor. Sir Guy Carleton was appointed his deputy on 7 April, 1766, with the title Lieutenant-Governor. He acted under the Instructions given to Murray (No V) until he was appointed Governor in 1768, when he received a new set of Instruc tions addressed to himself. For his work in Canada, see A. G. Bradley, Life of Lord Dorchester.

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